Disposed

Federation of Adoption Agencies v. the Central Adoption Resource Authority and Anr.

Bombay HC12 Apr 2016PIL/47/2016

Case brief

AI extract

What is this about?

The Court disposed of PILs challenging the 2015 Adoption Guidelines, noting the Juvenile Justice Act, 2015 has come into force. The Court directed the Central Government to frame model rules by June 13, 2016, and State Governments to frame rules subsequently. The 2015 Guidelines were allowed to operate temporarily until regulations are framed, subject to review for conflicts with the new Act.

What did the court decide?

Petitions disposed; Central Government directed to frame model rules by June 13, 2016; State Governments directed to frame rules; 2015 Guidelines allowed temporarily subject to review; listing fixed f

Federation of Adoption Agencies Vs the Central… — Child Custody and Guardianship | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.162 OF 2015
WITH

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CIVIL APPLICATION NO.68 OF 2016 WITH
 CIVIL APPLICATION NO.195 OF 2015 WITH
 CIVIL APPLICATION NO.33 OF 2016 WITH
CIVIL APPLICATION NO.42 OF 2016

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Santosh Digambar Honkarape
and another ...Petitioners
vs.
The Central Adoption Resource
Agency and others...Respondents

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Ms Shirin Merchant for the Petitioner in PIL
162/2015 and for applicant in CAI 195/2015
Mr.Mihir Desai Advocate appointed Amicus Curiae
Ms Anjali Tre Babanrao Pawar applicant in person in
CAI 33 of 2016

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Ms Pooja Joshi i/b Mr.S.R.Ganbavale for applicant in
CAI 42/2016
Mr.Anil C. Singh, ASG a/w Mr.D.P.Singh,
Mr.Y.R.Mishra, Mr.D.A.Nalawade, Mr.N.R.Prajapati for
the respondent Nos.1 and 2

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Ms Neha Bhide, AGP `B' Panel for respondent No.3

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ALONG WITH

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ORDINARY ORIGINAL CIVIL JURISDICTION

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PUBLIC INTEREST LITIGATION (L) NO.140 OF 2015

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Federation of Adoption
Agencies...Petitioners
vs.
The Central Adoption
Resource Authority & Anr. ...Respondents

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Ms Ankita Singhania i/b Mr.Hafeezaur Rehman for the
petitioners
Mr.Anil Singh, ASG a/w Mr.Y.R.Mishra and
Mr.N.R.Prajapati and Mr.D.P.Singh for respondent
Nos.1 and 2.

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pil162withospil140

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CORAM : A.S.OKA, &
 P.D.NAIK,JJ.
 DATE : APRIL 12, 2016

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P.C.:

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1In PIL No.162 of 2015 the challenge is to the
Guidelines governing Adoption of Children, 2015 (for
short `2015 Guidelines') which were made by the
Central Adoption Resource Authority (for short `the
Authority') under the Juvenile Justice (Care and
Protection of Children) Act,2000 (for short `the
said Act of 2000').

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2Now, the Juvenile Justice (Care and Protection
of Children) Act,2015 (for short `the said Act of
2015') has been enacted which was came into force on
15th January 2016. As far as the PIL (L) No.140 of
2015 is concerned, again challenge is to 2015
Guidelines.

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3Our attention is invited to the order dated 14th
March 2016 passed by the Apex Court in Writ Petition
(Civil) No.124 of 2012 (Advait Foundation and
another vs. Union of India and others). By the said
order, the Apex Court has disposed of the Writ
Petition under Article 32 of the Constitution of
India in which there were several prayers made
including the prayer for issuing a writ of mandamus

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directing the Union of India to enforce all
obligations of the UN Convention on the Rights of
the Child ratified, accepted and acceded by India on
11th December 1992.

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4TheobservationsmadebytheApex

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Court/directions can be summarised as under:

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(a) From the preamble, it is evident that the
said Act of 2015 is a comprehensive
legislation on the subject involving care and
protection of the children including adoption
covered by Chapter VIII thereof;

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(b)In view of section 68 of the said Act of
2015, the Authority under the said Act of
2000 shall be deemed to have been constituted
as the Authority under the said Act of 2015;

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(c)There is a rule making power conferred
under section 110 of the said Act of 2015 on
the State Government. The Central Government
is empowered to frame the model rules on the
subjects set out under section 110;

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5Before the Apex Court, the Authority sought
time of three months to frame the Regulations.
Power to frame the Regulations is under section 68
(c) of the said Act of 2015.

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6The Apex Court recorded a statement of the
learned counsel for the Union of India that within
the said period of three months, the Government
shall formulate the model rules for the benefit of
the State Governments. The Guidelines, if any,
which were earlier in force in terms of section 41-A
of the said Act of 2000 were ordered to be notified
by the Government with or without modifications
considering the necessity till the Authority frames
Regulations as contemplated by the said Act of 2015.

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7 Though the Apex Court disposed of the petition, following directions were issued :

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(I) The Central Government shall expeditiously frame the model rules and circulate the same to the State Government. The Central Government will take up the matter with the State Governments to ensure that they exercise the rule making power under section 110 of the said Act of 2015;

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(II) The Authority shall take steps in terms of the section 68 of the said Act of 2015;

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(III) Liberty was reserved to the petitioner to file a fresh petition if there were specific cases of illegality in respect of the children.

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8Today, the learned ASG stated that the model

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rules as provided in proviso to sub section (1) of
section 110 of the said Act of 2015 will be framed
by the Central Government within a period of three
months from 14th March 2016 which is the date of the
order of the Apex Court. There is already a
direction issued by the Apex Court to the Authority
to frame Guidelines/Regulations and in fact a
statement has been recorded by the Apex Court of the
Authority that within a period of three months,
Regulations will be framed.

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9An affidavit of Shri Jagannath Pati, the Joint
Director of Central Adoption Resource Authority
(Statutory Body of the Ministry of Women and Child
Development, Government of India), New Delhi is
filed on behalf of the Union of India which is
tendered today. In paragraph 4, it is stated thus:

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“4In response, it is humbly submitted that
the Guidelines governing Adoption of Children
(2015) is in operation under sub-section 2 of
Section 111 (Saving Clause) of the Juvenile
Justice (Care and Protection of Children)
Act, 2015, until the rules and regulations
governing adoption are made under the
relevant provisions of the said Act of 2015.”

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10On the last date of hearing, the learned senior
counsel appointed as Amicus Curiae pointed out that
till the Authority under the said Act of 2015 frames

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the Regulations under clause(c) of section 68 of the
said Act of 2015, there will be a vacuum created as
the Guidelines issued by the said Authority under
the said Act of 2000 will cease to operate.

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11The submission of the counsel representing the
petitioners is that the Guidelines framed by the
Authority including the 2015 Guidelines were not
framed in exercise of the power under the said Act
of 2000 and therefore, by taking the benefit of the
several clauses under sub section (1) of section 110
of the said Act of 2015, Central Government cannot
claim that the 2015 Guidelines will continue to
operate unless and until the Rules and Regulations
of adoption are made under the provisions of the
said Act of 2015. The learned counsel for the
petitioner pointed out that some of the 2015
Guidelines run completely contrary to the express
provisions of the said Act of 2015. By way of
illustration, it is pointed out that under sub
section (1) of section 74 there is a complete
prohibition on publication of a picture of the child
in need, care and protection and in fact, the
contravention of sub section 1 of section 74 has
been made as offence.

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12Looking to the language used by sub section 3
of section 41 of the said Act of 2000, we do not
agree with the submission that there was no
authority conferred under the said Act of 2000 on

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the said Authority to frame the Guidelines for
adoption. In any event, we need not go into the
legality of the stand taken in paragraph 4 of the
said affidavit. Express directions were issued by
the Apex Court in the aforesaid order recording that
it will be open for the Central Government to notify
the Guidelines which were earlier in force in terms
of sub-section 3 of section 41 of the Repealed Act
with or without modification. Thus, the Apex Court
has observed that there will be a power vesting in
the Central Government to continue the operation of
the Guidelines issued under sub-section 5 of section
41 with or without modification till the Regulations
are framed by the said Authority under clause (c) of
section 68 of the said Act of 2015.

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13Therefore, in any event, the Apex has conferred
Authority on the Central Government to continue
2015 Guidelines till the Regulations are framed by
the said Authority under the said Act of 2015.

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14Suffice it to say that now with coming into
force the said Act of 2015, the life of 2015
Guidelines which are impugned in the petitions is
very limited to the extent of at the most two or
three months. If the petitioners and/or intervenors
are of the view that some of the 2015 Guidelines are
directly in breach of the said Act of 2015, it will
be open for them to invite attention of the

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Government of India to the said aspect so that the
Government India can always exercise liberty
reserved by the Apex Court to direct that the 2015
Guidelineswillcontinuewithnecessary
modification.

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15We have perused the rule making power conferred
on the State Government under section 110 of the
said Act of 2015. We are of the view that unless
rule making power is exercised by the State
Government, the provisions of the said Act of 2015
cannot be effectively implemented. Therefore, the
State Government will have to take immediate steps
for framing the Rules. The State Government will
have to make a statement before this Court about the
outer limit within which an endeavour will be made
to make the statutory rules under section 110.

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16In view of the order of the Apex Court dated
14th March 2016 and in view of the fact that the
challenge in these two PILs will not survive, we are
disposing of the PILs. However, we propose to list
the PILs under the caption of `Directions' to ensure
that compliance is made by the said Authority,
Central and State Governments with the provisions of
the said Act of 2015.

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17The Central Government is expected to frame the
model Rules by 13th June 2016. Thereafter, the State
Government will have to start legislative process of
framing the Rules under section 110.

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18Hence, we pass the following order:

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(I) Subject to what is observed above, the petitions are disposed of;

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(II) We make it clear that no adjudication is made by this Court on various factual contentions raised not only by the parties to the petition but also by the intervenors. If the intervenors are aggrieved, they can always adopt appropriate proceedings for redressal of their grievances;

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(III) We accept the statement made by the Government of India in the affidavit of Shri Jagannath Pati in paragraph 4 thereof which we have quoted above. If parties to the petition or the intervenors are of the view that some of the 2015 Guidelines are directly in conflict with the provisions of the said Act of 2015, it will be open for them to invite attention of the Ministry of Women and Child Development Department, Government of India to the said aspect;

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(IV) As far as the contention based on subsection 1 of section 74 of the said Act of 2015 is concerned, we direct that Ministry of Women and Child Development Department, Government of India to look into the said grievance;

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(V) If necessary, appropriate modification shall be made by the Central Government to the 2015 Guidelines on the basis of the liberty granted by the Apex Court under the order dated

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pil162withospil140

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14th March 2016;

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(VI) For considering the compliance by the said Authority and Central and State Governments of the provisions of the said Act of 2015 and in particular clause(c) of section 68 and proviso to sub-section 1 of section 110 respectively, the petitions shall be listed on 21^st June 2016 under the caption of Directions';`

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(VII) We direct the State Government to file an affidavit setting out the outer limit within which the rule making power will be exercised by the State Government under section 110 of the said Act of 2015;

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(VIII) If some of the parties to the petitions or intervenors raise objection that some of the Guidelines are in breach of the said Act of 2015, such grievances shall be looked into by the Ministry of Women and Child Development Department of Government of India as expeditiously as possible and in any event within a period of one month from the date on which representations are made to the Secretary Incharge of the said department;

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(IX) Intervention application or applications which are pending do not survive and the same are disposed of;

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(X) Affidavit of compliance shall be filed by the concerned Authority, Central Government and the State Government on or before 17^th June 2016.

Federation of Adoption Agencies v. the Central Adoption Resource Authority and Anr.

Case brief

What is this about?

What did the court decide?

Federation of Adoption Agencies v. the Central Adoption Resource Authority and Anr.

Case brief

What is this about?

What did the court decide?

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