Boost to adoption

The Supreme Court’s order extending adoption rights to members of minority communities settles a legal issue in the contentious area of personal laws. It also serves a good social and humanitarian purpose. The court has ruled that Muslims, Christians, Jews and Parsis, and in fact any person from any religion, can legally adopt children under the Juvenile Justice (Care and Protection of Children) Act even if the personal laws of the religion do not permit it.  Adoption rights are limited under these personal laws. Those who adopt children are deemed only to be their guardians and not legal parents, and the children cannot inherit property. The biological parents could also claim their rights over the child. Under the JJ Act, adopted children have the same rights and responsibilities as biological children.

The judgment is welcome because it has made adoption laws uniform for all communities. The court has said that the JJ Act is an enabling secular law, like the Special Marriage Act, and any person who seeks to act under it cannot be denied that right. It has made it clear that personal beliefs and faith cannot dictate the operation of an enabling statute. What is important is that it leaves the choice to be governed by the secular law or the personal law to the individual. In that sense it is a compromise between the need to respect personal laws and the right of the individual to exercise his choice. As the court has said, a person has the freedom to adopt or not to adopt and to do so under what law. The JJ Act, according to it, in this respect is a small step towards the constitutional ideal of a common civil code.

The idea of a uniform civil code has been controversial and has been made worse by politicisation, as  seen on one side by the retrograde follow-up action in the Shah Bano case and on the other by the view that failure to move towards it is a sign of minority appeasement. While it cannot be imposed on minority communities, there should be efforts to move towards it. There are various issues like women’s rights, marriage and divorce that come under the purview of personal laws. If there is progress on individual issues, as is now possible with adoptions, that is welcome. Those who intend to adopt children can now do so without a sense of uncertainty and without offending personal laws.

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