Bombay High Court Upholds 2021 Juvenile Justice Act Amendment

1 Writ Petition No.1085 of 2023 filed by the Petitioners Nisha

Pradeep Pandya and Pradeep Baijnath Pandya raise a challenge

to the amendment introduced by the Juvenile Justice (Care and

Protection of Children) Amendment Bill, 2021, in the Juvenile

Justice (Care and Protection of Children) Act, 2015 alongwith the

Juvenile Justice (Care and Protection of Children) Amendment

Rules, 2022, insofar as they have replaced the word ‘Court’ with

‘District Magistrate’. A challenge is also raised to the

consequential amendments in the Act and Rules by claiming that

they are violative of Article 14 and 21 of the Constitution of India

and defeat the basic structure doctrine which shall enforce

concept of equality and separation of power.

The second Writ Petition No.205 of 2023 filed by

Mohammad Javid Khan and Shewar Mohammed Javid Khan is

concerned with adoption of the child to the proposed parents, in

close relation of Petitioner No.2 who had filed a Foreign Adoption

Petition under Section 16(1) of the Juvenile Justice Act, 2015

and the Regulations of 2017 and challenge is also raised to the

conferment of the judicial powers from the Collector to the

District Magistrate (executive) in the wake of the Juvenile

Justice (Care and Protection of Children) Model Amendment

Rules, 2022, being introduced and challenge is also raised to the

provisions in the Amendment Act, 2021 to the extent that it

contemplate transfer of power from the ‘Court’ to the ‘Collector’

and ‘District Magistrate’ and the claim is, it is ultra vires to the

Constitution.

2 On 10/01/2023, the Division Bench noted that there is no

stay to the implementation of the amendment and directed the

Government to file its Affidavit in Reply and also issued notice to

the Attorney General. On the very same day, ad-interim order

was granted in terms of prayer clauses (d), (e) and (f) , as a result

of which the Court stayed the effective implementation and

purport of the letter of 30/09/2022, issued by Respondent No.2

and it restrained the Respondents from transferring pending

adoption matters before the District Magistrate for adjudication.

3 We have the learned counsel Mr.Vishal Kanade for the

Petitioners in Writ Petition No.1085 of 2023 and Mr.Avinash

Gokhale for the Petitioner in Writ Petition NO.205/2023, who

adopted the arguments of Mr. Kanade and tendered written

submission. Respondent-Union of India is represented by the

learned Additional Solicitor General Mr.Anil Singh, who would

rely upon the Affidavit filed by the Under Secretary, Ministry of

Women and Child Development Department, justifying the

amendment and he has also placed on record written

submissions opposing the reliefs in the Petitions by placing

reliance upon various authoritative pronouncements.

4 With consent of respective counsel, we deem it appropriate

to issue ‘Rule’ and at their request, we have taken up the

Petitions for final hearing at the stage of admission.

5 Mr.Vishal Kanade, representing the Petitioners i.e. a

married couple in Writ Petition No.1085 of 2023 would submit

that they were interested in pursuing the adoption process

under the Juvenile Justice Act, 2015 and on being aggrieved by

the Amendment effected by the Amending Act thereby assigning

the function, which was earlier vested under the provisions of

Juvenile Justice Act in the ‘Court’ being assigned to the ‘District

Magistrate’ and it is a matter of concern as according to him,

grant of acceptance of a child in adoption is a judicial function,

which could not be delegated to an Executive Authority like a

‘District Magistrate’ who may not possess the necessary

infrastructure as well as necessary expertise in this regard.

According to Mr.Kanade, a District Magistrate, being a Chief

Executive Officer of a District may not also be conversant with the

niceties of the law and, therefore, by substituting the role played

by the Court in the whole adoption process by that of the

Magistrate, would have an adverse impact upon the whole

process of adoption and since adoption is a legal process of

establishing a legal bond between the child and adoptive parents,

according to him, the Courts in exercise of its jurisdiction under

parents patriae are more suitable, as it can ensure the welfare of

the child. The issue of adoption being sensitive, according to

Mr.Kanade it deserve to be tackled with judicial expertise, as the

well being of the children and suitability of the family in which

the child is to be given in adoption, would be the focal point.

Mr.Kanade would place reliance upon the decision of the

Apex Court in case of Lakshmi Kant Pandey vs. Union of India1 ,

when the Apex Court was confronted with the Public Interest

Litigation, complaining against mal-practices and trafficking in

children in connection with adoption of Indian children by

foreigners living abroad. While issuing the guidelines and

determining norms to be followed in cases of such adoption with

reference to the Guardians and Wards Act, 1890, Mr.Kanade has

emphasized that the Court pertinently observed that while

supporting inter-country adoption it is necessary to bear in mind

the primary object of giving the child in adoption and it being, the

welfare of the child, and great care must be exercised in

permitting the child to be given in adoption to foreign parents,

lest the child may be neglected and abandoned by the adoptive

parents in the foreign country or the adoptive parents may not be

able to provide to the child a life of moral or material security or

the child may be subjected to some abuse or forced labour or used

for experimentation for medical or other research and may be

placed in worse scenario than that of his own country.

According to Mr.Kanade, the Apex Court has identified

certain issues to be taken into consideration while undertaking

the adoption process and with reference to the Guardians and

Wards Act, 1890, which is a statutory enactment providing for

adoption of a child as far as India is concerned and the Apex

Court had noted that the ‘Court’ shall mean the District Court

having jurisdiction to entertain an Application under the Act for

an order appointing or declaring a person to be the guardian.

1 (1984) 2 SCC 244

Inviting our attention to the observations when the Apex

Court contemplated giving notice to the Indian Council of Social

Welfare or any other independent, reputed in public or officially

recognized social welfare Agency, the Court emphasized upon

ensuring that the Application of foreign parents for guardianship

of the child with a view to its eventual adoption is properly and

carefully scrutinized and evaluated by an expert body having

experience in the area of child welfare with a view to assisting

the Court in coming to a conclusion, whether it would be in the

interest of the child to be adopted by the foreign parents and

whether such adoption will provide moral and material security

to the child with an opportunity to grow into the full structure of

its personality in an atmosphere of love and affection and warmth

of a family hearth and home.

While dealing with the procedure evolved by the High

Courts of Bombay, Delhi and Gujarat, the Apex Court deemed

such procedures to be eminently desirable as they would assist in

reducing, if not eliminating, the possibility of a child being

adopted by unsuitable or undesirable parents or being placed in a

family where it may be neglected, maltreated or exploited by the

adoptive parents.

6 Mr.Kanade has also placed before us the historical

background of the whole concept of adoption and he would submit

that the concept of adoption received legal sanction somewhere

between 1851 to 1926 when various countries enacted

legislations legalising and defining the process of adoption. He

would submit that one thing which was running common through

all the legislations, was the judicial sanction of the adoption and

the Courts received the role of being an integral part of the

adoption process since the advent of the concept of adoption.

Referring to the 153rd Law Commission Report on Inter

Country Adoption, he would submit that the Adoption of Children

Bill 1980 which never was translated into a law, also provided for

judicial supervision and sanction in the process of adoption and

though it did not take the shape of statute, it endeavoured of

plucking the loopholes in the whole system and particularly

when the Indian children were being adopted by foreign parents.

The Apex Court treated the letter addressed by Laxmi Kant

Pandey an Advocate practicing in the court who complained of

mal-practices indulged by social organizations and voluntary

agencies in the work of offering Indian children in adoption to

foreign parents.

Expressing the concern that the children would be placed in

worse scenario if the adoption process is not carried out in

proper manner, which shall necessarily include the verification

and assessment of the potential of the adoptive parents to adopt

the child as their own and care for his upbringing, and notices

were issued to the Union of India, the Indian Council of Child

Welfare and Indian Council of Social Welfare, to assist the Court in

laying down the principles and norms which would be followed in

determining whether a child should be allowed to be adopted by

foreign parents and if so what shall be the procedure to follow so

as to ensure welfare of the child.

7 In the sequence of events, according to Mr.Kanade, the

Juvenile Justice Act, 1986 was enacted which aimed at providing

care, protection, treatment, development and rehabilitation of

neglected or delinquent juveniles and for adjudication of certain

matters relating to and disposition of delinquent juveniles.

Somewhere in June, 1990 the Central Adoption Resource

Agency (CARA) was set up under the Ministry of Welfare,

Government of India with an avowed purpose of regulating,

monitoring and promoting the adoption of orphaned, abandoned

or surrendered children, which was subsequently conferred with

autonomous status.

8 The Juvenile Justice ( Care and Protection of Children) Act,

2000 repealed the Juvenile Justice Act, 1986 and the new Act

widened the scope from neglected children to all children ‘in need

of care and protection’ as defined in the Act. Though the statute

did not define the term ‘Adoption’, it was accepted as one of the

four ways of rehabilitation and social integration of the children

in need of care and protection. The Juvenile Justice Board (JJB)

constituted under the Act, vested with the powers of Metropolitan

Magistrate or Judicial Magistrate of First Class, was empowered

to give the children in adoption.

The Juvenile Justice (Care and Protection of Children)

(Amendment Act), 2006 when enacted, it introduced the

definition of ‘adoption’ and by this Amendment the power was

conferred on the Courts to give children in adoption by

substituting it in place of the ‘Board’.

The term ‘Adoption’ was defined to mean the process

through which the adopted child is permanently separated from

his biological parents and becomes the legitimate child of his

adoptive parents with all rights, privileges and responsibilities,

being attached to the relationship.

Since adoption was resorted for rehabilitation of children

who were orphaned, abandoned or surrendered through the

mechanism as may be prescribed, the power to give the children

in adoption was conferred on the Court, who after satisfying itself

regarding the investigation having been carried out as required

for giving such children in adoption also stipulated the conditions

subject to which a child can be given in adoption and the parents

were permitted to adopt.

9 Mr.Kanade would place heavy reliance on the report of the

Department relating to the Parliamentary Standing Committee on

Human Resource Development in relation to the Juvenile Justice

( Care and Protection of Children) Bill, 2014, as the Parliament

proposed to consolidate and amend the law relating to children

in conflict with law and those in need of care and protection by

catering to the basic needs of proper care, protection,

development, social integration and this report according to him

addressed the problematic areas in implementation of the

Juvenile Justice Act, 2000 and this included; delays in various

process under the Act such as decision by Child Welfare

Committee(CWC) and Juvenile Justice Board (JJB), leading to

high pendency of cases.

This development was followed by enactment of Juvenile

Justice (Care and Protection of Children) Act, 2015 which

comprised of the definition of the term ‘Adoption’ and defined the

‘Authority’ to mean the Central Adoption Resource Authority

(CARA) constituted under Section 68 of the Act. It also defined

‘Court’ in Section 23 as below :-

(23) “Court” means a Civil Court, which has jurisdiction in matters of

adoption and guardianship and may include the District Court, Family

Court and City Civil Court.”

10 Inviting our attention to the Scheme of the Act, Mr.Kanade

has submitted that Chapter VIII pertaining to adoption, set out

that it shall be resorted for ensuring right to family for the

orphaned, abandoned and surrendered children and all inter

country adoptions to be carried out as per the provisions of the

Act and the Adoption Regulations framed by the Authority. The

Authority was given statutory status under Section 68 which was

established with an intention to promote inter country adoptions

and facilitated inter state adoptions in coordination with State

agencies and to regulate inter country adoptions.

11 By the amendment introduced by the Amendment Act,

2021, the function which was assigned to the Court is now

entrusted to the District Magistrate, a limb of executive in

allowing the adoptions, substituting the Judicial Officers. Mr.

Kanade would place reliance upon the 118th Report of

Parliamentary Standing Committee on personal, public

grievances, law and justice and in particular, the following

observations therein :

“3.28 The Committee notes that Juvenile Justice (Care and Protection

of Children) Amendment Act. 2021 authorizes the District Magistrate

(including Additional District Magistrate) to issue adoption orders and

provides that any person aggrieved by an adoption order passed by the District Magistrate may file an appeal before the Divisional

Commissioner. The Committee is of the considered opinion that Judges

have the competence, experience and skills to determine whether

adoption is in the best interest of the child. When deciding on adoption,

Courts review documents, ensure necessary procedures have been

complied with, and conduct an inquiry of the child and adoptive

parents and ensure that adoption is for the welfare of the child. The

Committee feels that it is not appropriate for an administrative

authority to issue adoption orders instead of a judicial body. However,

since the Act has been amended and the new system is yet to be tried

and tested, the Committee recommends that appropriate training

should be imparted to District Magistrates & Additional District

Magistrates and Divisional Commissioners as well. The Committee

recommends the Ministry of Women and Child Development to review

the functioning of the new system after a year and present an

Assessment Report to the Committee accordingly.”

12 It is the specific contention of the Petitioners that the

impugned Amendment substituting the functionary under the

Juvenile Justice Act and specifically in relation to adoption by the

District Magistrate is manifestly arbitrary. According to him, in

case if an order is passed by the Court, it becomes enforceable

and executable through the machinery of the Court, but there is

no provision for enforceability/execution of the adoption orders if

at all they are passed by the District Magistrate. It is his specific

contention that the order granting a child in adoption is a judicial

function and the Civil Courts are best suited for exercise of this

power and the purported reasoning behind the amendment that

there are large number of pendency of adoption cases in High

Courts and Civil Courts which result in its disposal, according to

Mr.Kanade is not backed by facts. He would submit that merely

because the District Magistrates are now entrusted the task, no

way lead to an inference that the process to be adopted shall be

expeditious as substituting the Magistrate by the Court would in

fact defeat the very purpose of conferring the powers on an

Authority, in allowing the adoption as Civil Courts who have the

judicial power would be more competent to deal with the

procedure of adoption.

The Juvenile Justice Board, which was also constituted,

comprised of Metropolitan Magistrate or Judicial Magistrate

First Class, alongwith two social workers of which at least one

had to be a woman.

Mr.Kanade’s emphasis is also on separation of power as he

would invoke Article 50 of the Constitution of India and submit

that when a judicial function is sought to be transferred by

virtue of creation of an alternative forum or a Tribunal, such

forum must have judicial trappings and must be occupied by

persons with judicial, technical and administrative members and

definitely the District Magistrate is not an appropriate substitute.

His main concern is enforceability/execution of the orders and in

order to have workability and practical implementation, it is his

submission that the District Magistrate who is the Revenue

Officer and with limited powers being conferred under the Code of

Criminal Procedure as well as other statutes is otherwise over

burdened with several executive functions being required to be

discharged by him as he is the Head of the administration of the

revenue district and also responsible for law and order situation.

Therefore, according to Mr.Kanade, there is no assurance/

guarantee, that if the functions are entrusted to District

Magistrate, the process will consume less time or that it will be

functioned as if through a ‘Magic Wand’ as the procedure that is

contemplated must be necessarily followed and if the process is

time consuming, it cannot be short circuited in the manner which

the Union of India expect it to be.

13 Mr. Anil Singh, Additional Solicitor General, representing

the Union of India, strongly opposes the relief sought in the

Petition, and he raise an objection that the challenge raised in the

Petitions is academic in both the Petitions and neither of the

Petitioner has a cause of action, as they have failed to

demonstrate as to how they are affected by the said amendment.

Inviting our attention to the pleadings in the Petition, it is the

contention of Mr Singh that neither of the Petitioners have taken

any steps for adoption, nor do they have any proceedings pending,

and therefore, in no way, the amendment has impacted them.

Therefore, according to him, the challenge is merely academic,

and the Petitions, not being filed in public interest, do not deserve

to be entertained.

Apart from the aforesaid submissions, Mr. Singh would

submit that a statute is presumed to be constitutionally valid and

the burden rests on the person raising a challenge to the same. In

raising a challenge to constitutionality, according to him, the

grounds must be specific, and must set out the manner in which

the rights of the petitioner are affected.

For seeking a declaration that the provision is

unconstitutional, according to Mr. Singh, the challenge must be

based on cogent reasons and establish violation of fundamental

rights or that the legislature has no power to introduce the said

provision. According to Mr. Singh, the amendment of 2021 has

replaced ‘Courts’ with the ‘District Magistrate’, and he would

submit that there is no factual foundation laid down in either of

the Petitions demonstrating violation of the fundamental rights of

either of the Petitioners, if at all the power is now exercised by the

District Magistrate. According to him, the challenge is sought to

be mounted on a historical perspective by claiming that such

powers have always been exercised by the Courts, but it is not

demonstrated as to how the transfer of this power in the ‘Juvenile

Justice Board’ to the ‘District Magistrate’ is beyond the

legislative competence, or that it suffers from manifest

arbitrariness and what impact it has upon the whole process.

14 Highlighting the process contemplated for adoption in the

scheme of the Juvenile Justice Act, Mr. Singh would submit that

the statutory mechanism prescribed has involvement of several

authorities and bodies, all aimed at a singular objective i.e. the

welfare of the child, and in the adoption process, ascertaining the

suitability of the adoptive parents, their home and monitoring the

child post-adoption to ensure that adoption has been in the

interest of the child. Highlighting the statement of objects and

reasons in introducing the amendment in the Juvenile Justice

(Care and Protection of Children) Act by Amendment Bill of 2021,

Mr. Singh would rely upon the following object :-

“(a) to strengthen child protection at district level by empowering

District Magistrate including Additional District Magistrate to

effectively coordinate and monitor the functions of various agencies

responsible for implementation of the provisions of the Juvenile Justice

Act.

(b) to empower District Magistrate including Additional District

Magistrate to authorise orders of adoption, in order to address issues of

delay in adoption and to propose that appeals on the orders of adoption

may be preferred to the Divisional Commissioner.”

Thus, according to him, the delay in the process with the

involvement of the Courts was one of the issue which warranted

the substitution of ‘Court’ by District Magistrate including the

Additional District Magistrate, and since the District Magistrate

was considered to be in a position to effectively coordinate and

monitor the functions of various agencies responsible for

implementation of the Act, intention of the legislature according

to Mr. Singh, was laudable.

Reliance is also placed by Mr.Singh upon the Adoption

Regulations 2022, focusing upon the timelines envisaged under

the Act and it is his categorical submission that the steps to be

followed pre-adoption and the actual steps to be taken for

adoption do not require any specific judicial approach and in any

case, according to him, the District Magistrate, being the Chief

Executive Officer in the district, is suitably placed to ensure

effective coordination amongst stakeholders for facilitation of

necessary services for children rehabilitation/ re-integration.

Keeping in mind the timelines for disposal of adoption

proceedings, and the underlying emphasis on adoption cases

being non-adversarial in nature, according to Mr. Singh, the

legislature deemed it appropriate to culminate the adoption

process at the level of the District Magistrate, who is envisioned

as the ‘Child Protection Head’, who will monitor every stage of

implementation of the process of adoption in the Act. He would

submit that the District Magistrate, (i) shall be the Nodal Officer

in the district for the implementation of the Acts and Rules (ii)

function as head of Child Protection Services in district for

promotion, facilitation, monitoring and regulation of adoption

programme (iii) When required, in the best interest of a child, call

for any information from all stakeholders including JJB and CWC

(iv) monitor the functioning of various agencies including the

DCPU and CWC that are responsible for implementation of the act

and to hold quarterly review meetings with the stakeholders to

discuss the issue related to children in the district. (v) Can act as

Grievance Redressal Authority of functioning of CWC and the

affected child. (vi) Make recommendations for registration of

Child Care Institutions, (CCIs) based on inspection.

15 According to Mr.Singh, the District Magistrate performs

various administrative and quasi judicial functions under various

statutes and he has highlighted the list of statutes, where the

District Magistrate is empowered to adjudicate and this include

the Appellate Tribunal constituted under Section 15 of the

Maintenance and Welfare of Parents and Senior Citizens Act,

2007, which is presided by an Officer not below the rank of the

District Magistrate and this Tribunal is empowered to adjudicate

the Appeals against orders of the Tribunal constituted under the

Act empowered to decide on the issue of maintenance under

Section 5, and is vested with the power to record evidence.

Similarly, under Section 31 of the Maharashtra Stamp Act, 1958,

according to Mr. Singh, the Collector is the Authority to

determine the stamp duty payable on an instrument and he

performs administrative as well as quasi-judicial functions under

the Act.

According to Mr. Singh, the District Magistrate is not a new

entrant in the Act, as he was performing various functions even

prior to the amendment, and no grievance was made. According

to him, as per Section 101, the District Magistrate was exercising

the power of the Appellate Forum against the orders passed by

CWC and the JJB in relation to foster care and sponsorship

Aftercare.

16 In addition, Mr. Singh would submit that in accordance with

the recommendations of the Parliamentary Standing Committee,

appropriate training shall be imparted to District Magistrate and

Divisional Commissioners, by the Ministry of Women and Child

Development with the involvement of CARA and more than 27

orientation programmes have been arranged between February

2022 and December 2022, to make the District Magistrates

equipped with discharge of their duties in the wake of the

amendment of 2021. It is categorically submitted by Mr.Singh

that as child protection head, the District Magistrate is

conversant with the child protection issues, including adoption, in

the district and he is also oriented on key features of the Juvenile

Justice Act to ensure smooth implementation of Child Protection

Scheme, titled as ‘Mission Vatsalya’ and therefore, according to

him, the District Magistrate has the competence and expertise to

deal with adoption matters, and in any case, the assigned role of

the District Magistrate in no way, diminish the judiciary’s

authority to oversee the overall operation of the Juvenile Justice

System. According to him, amendment merely confers the duty to

permit adoption by the District Magistrate in place of the Court

and therefore, there is only a change in the forum and in any case,

according to him, the Courts who were competent to exercise the

said function, were not required to determine the rights of the

parties, but merely restricted its role to assist whether the

mandatory requirement under the Acts and Regulations are

adhered to before the adoption is allowed and the same power and

duty being now case upon the District Magistrate, who shall

consider the applications for adoption and follow the same

procedure which was done by the Court.

17 In the backdrop of the challenge raised to the 2021

amendment introduced in the Juvenile Justice (Care and

Protection of Children) Act, 2015, by the amending Act of 2021,

the term ‘District Magistrate’ is introduced in Section 26-A, by

providing that ‘District Magistrate include Additional District

Magistrate of the district’. Sub-section (4) is added in Section 16

empowering the District Magistrate to call for any information for

all the stakeholders including the Board and the Committee as

and when required in the best interest of the child.

In Section 27 pertaining to Child Welfare Committee, subsection

(8) is substituted and the provision where the District

Magistrate was authorised to conduct a quarterly review of the

functioning of the CWC, is substituted by providing that the CWC

shall submit a report to the District Magistrate in such form as

may be prescribed and the District Magistrate shall conduct a

quarterly review of the functioning of the Committee. In addition,

sub-section (10) has been substituted by empowering the District

Magistrate to be the ‘Grievance Redressal Authority’ to entertain

any grievance arising out of the functioning of the Committee and

the District Magistrate is empowered to take cognizance of the

action of the Committee and pass appropriate order.

The amending Act also introduced an amendment to

Sections 54 and Section 55, where a specific role is assigned to

the District Magistrate authorising him to take action upon the

inspection being carried out of the institutions registered under

the Act.

18 In connection with Chapter VIII pertaining to adoption, and

which is the subject matter of challenge before us, in Section 56,

sub-section (5) has introduced the ‘District Magistrate’ as the

authority to pass an order, in absence of which any person who

takes or sends a child to a foreign country, or to take part in any

arrangement for transferring the care and custody of the child to

another person in a foreign country, is punishable as an offence.

In Section 58, which has set out the procedure for adoption by

Indian prospective adoptive parents living in India, the

application shall lie before the District Magistrate for obtaining

the adoption order by substituting the term ‘Court’ and in subsection

(4), in place of certified copy of the order passed by the

Court, the specialised adoption agency shall act on the copy of the

order passed by the District Magistrate. Similarly, in section 59,

sub-section (7), the role of the Court is substituted by the District

Magistrate and similar is the case of sub-section (1) of Section 60.

As regards the procedure for the disposal of adoption

proceedings which determine the factors to be considered by the

Court while considering the adoption application, the ‘Court’ is

substituted by District Magistrate, who shall before issuing an

adoption order, satisfy itself that the adoption is for the welfare of

the child; due consideration is given to the wishes of the child and

neither the prospective adoptive parents had given or agreed to

give; nor the specialised adoption agency or the parent or

guardian of the child has received or agreed to receive any

payment or reward in consideration of the adoption, except as

permitted under the Adoption Regulations. Similarly, in Sections

63 and 64, there is substitution of the word ‘Court’ by ‘District

Magistrate’.

Thus, by the Amending Act of 2021, there is substitution of

the Authority of Court by that of District Magistrate.

The statement of objects and reasons of the amending Act

reads to the following effect :-

“1. The Juvenile Justice (Care and Protection of Children) Act, 2015

(the Juvenile Justice Act) came into force with effect from the 15th

January, 2016, by repealing the Juvenile Justice Act, 2000, with a

comprehensive provision for the children alleged or found to be in

conflict with law and children in need of care and protection. The

Juvenile Justice Act has been made in pursuance of the Constitution of

India which mandates equal rights for children and also mandates upon

State, inter alia, to take suitable measures for protection of children.

The Act also fulfils the India’s commitment as a signatory to the United

Nations Convention on the rights of the child, the United Nations

Standard Millennium Rules for the Administration of Juvenile Justice,

1985 (the Beijing Rules), the Hague Convention on Protection of

Children and Co-operation in respect of Inter-country Adoption (1993)

and other related international instruments.

2. Sub-section (1) of section 56 of the Juvenile Justice Act provides

that adoption shall be resorted to for ensuring right to family for the

orphan, abandoned and surrendered children, as per the provisions of

the said Act and the rules and regulations made thereunder. Section 63

of the Juvenile Justice Act stipulates that the adoption is final on the

issuance of the adoption order by the Court. Sub-section (2) of section

61 of the said Act also provides that the adoption proceedings shall be

disposed of by the court within a period of two months from the date of

filing of an application. It was observed that there is significant delay in

finalisation of adoption cases in Courts. Besides, these adoption cases

are non-adversarial in nature and to be dealt according to well laid out

process. Hence, it is proposed to culminate the adoption process at the

level of District Magistrate in the District.

3. District Magistrate, being the Chief Executive Officer in the District,

is suitably placed to ensure effective coordination among the

stakeholders for facilitation of necessary services for children’s

rehabilitation/re-integration. By further empowering District

Magistrate to deal with child protection and adoption process, it aims

to facilitate a coordinated and effective response of District

Administration to various issues pertaining to children, including

adoption.

4. The Juvenile Justice Act deals with “Petty”, “Serious” and “Heinous”

categories of offences. Hon’ble Supreme Court in the matter of Shilpa

Mittal Vs. State of NCT of Delhi (Criminal Appeal No. 34 of 2020), vide

its judgment dated the 9th January, 2020 has observed that the

Juvenile Justice Act does not deal with the fourth category of offences

viz., offence where the maximum sentence is more than seven years

imprisonment, but no minimum sentence, or minimum sentence of less

than seven years is provided and treated the same as “serious offences”

under the Act.”

19 Though Mr.Kanade has placed before us the history of the

process of adoption which has emerged through various statutes

including the Adoption of Children Act 1918 Bill, which never took

the shape of a statute but the importance of the judicial system of

the adoption process was highlighted through the judgment of the

Apex Court in Lakshmi Kant Pandey vs. Union of India (supra).

We note that the Juvenile Justice Act, 1986 which was the initial

statute focusing on the care, protection, treatment, development

and rehabilitation of delinquent juveniles with the introduction of

Central Adoption Resource Agency (CARA) which was

constituted for regulating, monitoring and promoting adoption of

the orphan, abandoned or surrendered children, to achieve the

object of the Act, being rehabilitation of the Juveniles.

In the Juvenile Justice Act, 2000 which repealed the

Juvenile Justice Act, 1986, ‘Adoption’ was recognised as one of

the mechanisms of rehabilitation and the powers were conferred

on the Juvenile Justice Board with the presence of the

Metropolitan Magistrate or a Judicial Magistrate First Class. It is

only in the Juvenile Justice (Care and Protection of Children)

Amendment Act, 2006, the power to give children in adoption,

was taken away from the Board and conferred on the Courts. This

provision then continued even in the Juvenile Justice Act, 2000

which assign the definite meaning to the Court and it cover Civil

Court having jurisdiction in the matters of adoption and

guardianship and include the District Court, Family Court and

City Civil Court.

The Court played a crucial role in the mechanism of

adoption, but in the background of the SOR, highlighting the

intention of the legislature to bring the change when the ‘Court’

was substituted by the ‘District Magistrate’ for the reasons,

deemed appropriate by the legislature, the said amendment is

subjected to challenge before us.

20 The foundation of the adoption system in India, which has

surfaced through provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2000 which was repealed by Juvenile

Justice (Care and Protection of Children) Act, 2015, with

adoption being accepted as one of the modes of rehabilitation,

followed a child centric approach and recognised adoption as one

of the most effective mode of rehabilitation of the orphans,

abandoned and surrendered children and the whole process of

adoption was made subject to the provision of Juvenile Justice

Act and the adoption Regulations framed by the authority i.e.

Central Adoption Resource Authority constituted under Section

68. All inter-country adoptions are carried out as per the

provisions of Juvenile Justice (Care and Protection of Children)

Act and the Regulations of CARA. The adoption process

contemplate a valid order from the Court and this provision is

now substituted by contemplating a valid order from the District

Magistrate.

From time to time, CARA which is the statutory body, have

framed Regulations governing adoption, so as to ensure that it is

in the best interest of the child. When the District Magistrate is

introduced in the Scheme involving adoption of abandoned,

orphaned and surrendered children, he is expected to discharge

his powers and functions in the same spirit, keeping in mind the

spirit of Chapter VIII being in the interest of the child.

21 Upon the amendment being introduced by the Act No.23 of

2021 with effect from 1/9/2022, the Ministry of Women and Child

Development also formulated Juvenile Justice (Care and

Protection of Children) Model Amendment Rules, 2022.

The Rules also came into force from the date of its

notification i.e. 1/9/2022 giving effect to the amendment

introduced in the Act of 2015 which assigned a specific role to the

District Magistrate at various stages in implementation of the Act

of 2015 and this included the substitution of the Authority with

whose permission the child can be given in adoption.

22 The objection on behalf of the Petitioners, is to the discharge

of the power by the ‘District Magistrate’ in place of the ‘Court’

which played a crucial role in the adoption system, which aimed

at ensuring better interest of the child.

The apprehension expressed that the order passed by the

District Magistrate would not be capable of execution, as an

order passed by the Court and post-adoption the District

Magistrate will not be in a position to ensure that the child is in a

comfortable atmosphere and is well accommodated in the

adoptive family, according to us is completely unfounded.

It is worth to note that the Amendment of 2021 has

introduced the District Magistrate into the system as in contrast

to District Collector who have different functions in

administrative hierarchy. The District Collector is the highest

Collector in charge of Revenue administration in a District and is

responsible for overseeing issues related to land revenue,

taxation and the management of resources. In terms of the

revenue related matters, the District Collector is answerable to

the Government through the Divisional Commissioner.

As against this, the District Magistrate holds the position of

senior-most Executive Magistrate who is responsible for general

administration in the District which includes maintaining of law

and order, enforcing government policies and coordinating

various developmental activities. The District Magistrate is the

principal authority for smooth functioning of district governance

and apart from over all administration, he plays an important

role in law enforcement and its implementation at district level.

His role in the revenue administration may be restricted, but he is

cast with several responsibilities which include exercise of

judicial powers, he being a senior most Executive Magistrate. The

District Magistrate is entrusted with functions of significance in

the Code of Criminal Procedure, 1973 and the present Bharatiya

Nagarik Suraksha Sanhita, 2023. Under Section 144 Cr.P.C. (new

Section 163 of BNSS), the District Magistrate is empowered to

issue orders to restrict public movements or assembly of 5 or

more people to prevent public disturbance. Similarly, in Statutes

like National Security Act, 1980 it is the District Magistrate who

is competent to order detention of a person to prevent him from

acting in a manner prejudicial to State security or public order

and he has the power of preventive detention. Similarly, he acts

as a licensing Authority under the Arms Act, 1959 and is

conferred with the power to grant, renew or revoke Arms and

Ammunition License.

In the proceedings under Section 107-110 of the Cr.P.C., the

District Magistrate is empowered to ensure security of good

behaviour and by demanding security and peace and as a

remanding Authority, he is authorized to detain accused in police

or judicial custody. It is not uncommon under special statute to

confer powers on the District Magistrate, which are in the nature

of quasi judicial functions and this include the power to grant

licenses for cinemas under the Cinematograph Act, 1952 and an

Authority competent to issue orders for relief and rehabilitation

under the Disaster Management Act, 2005.

Similarly the most important function discharged by the

District Magistrate is under the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007, under which the Appellate

Tribunal constituted under Section 15 is presided by an Officer

not below the rank of District Magistrate. The Appellate Tribunal

is competent to adjudicate Appeals against the orders of

Tribunals which decides maintenance of senior citizens.

23 The apprehension expressed by the Petitioners about the

District Magistrate not being competent to deal with the adoption

process, which is purely judicial function is also dehors any

merit as the District Magistrate in various situations, exercises

quasi judicial functions and in fact he was already in the system,

as under Section 101, as the District Magistrate was exercising

the power of the Appellate forum against the orders passed by

CWC and JJB in relation to foster care and sponsorship after care.

We have no doubt in our mind that the District Magistrate

is well suited to act and assist in welfare of the children and the

Petitioners’ assumption is wrong, as it expects the sensitivity of

implementing the child placement process in the course of

adoption.

The robust mechanism which exist under the Juvenile

Justice Act, with the aid of the Authority, constituted for the said

purpose and the process of adoption being well guided by the

Statute itself, we see no difficulty in the District Magistrate

implementing the provisions of the Statute and determination of

the eligibility of the prospective adoptive parents, which is the

most significant stage in the whole process, is well guided by the

Regulations framed by CARA Authority. It is this Authority

which is fully involved into the process of adoption and it shall

act on the Home Study Report of the prospective adoptive parents

and upon finding them eligible will refer a child declared legally

free for adoption alongwith the Child Study Report and Medical

Report in the manner as provided in the Adoption Regulations

framed by the Authority.

The whole process of adoption is well chartered by the

Statutory Authority CARA, which is constituted under Section 68

of the Act to regulate inter-country adoptions and promote incountry

adoptions and facilitate inter-state adoptions in

coordination with State agency.

24 In exercise of powers conferred upon CARA, it has framed

the Adoption Regulations, 2022 in supersession of the Adoption

Regulations, 2017 and the said Regulations which focus on the

fundamental principles governing adoption, has determined the

eligibility criteria for the prospective adoptive parents and has

also set out the procedure relating to children for adoption, which

includes the orphan or abandoned children as well as the

surrendered child. The Regulations have exhaustively provided

for the procedure to be followed which include registration and

home study of the adoptive parents and has also provided for

pre-adoption foster care by the prospective adoptive parents

within 10 days from the date of matching, after signing the preadoptive

foster care undertaking in the format prescribed.

In the wake of the amendment introduced in the year 2021,

Regulation 13 has clearly prescribed that the specialized adoption

agency shall file an Application with the District Magistrate of the

District through the District Child Protection Unit (DCPU) where

the child is located alongwith the relevant documents prescribed

in Schedule 9 within 10 days from the date of matching of the

child with the prospective adoptive parents and the Application

shall be filed in the prescribed format.

The District Magistrate, shall, thereafter, hold the adoption

proceedings in-camera and dispose of the case as early as possible

not exceeding two months from the date of filing of the adoption

application by the specialized adoption agency as provided under

sub-section (2) of Section 61. Thereafter, the Agency shall obtain

certified copy of the Adoption Order from the District Magistrate

through the DCPU and forward it to the adoptive parents and is

shall also be uploaded on the designated portal, which could be

downloaded by the prospective parents. The Specialized Adoption

agency, shall, thereafter, submit an Affidavit to the District

Magistrate as per the prescribed format.

Not only this, Regulation portal also provides for follow up of

progress of adoptive child and this take care of the apprehension

expressed by Mr.Kanade that there is no mechanism of the follow

up action when the child is adopted and Regulation 14 prescribe

thus :

14. Follow-up of progress of adopted child. (1) The Specialised Adoption

Agency which has prepared the Home Study Report, shall prepare the

post-adoption follow-up report on six monthly basis for two years from

the date of pre-adoption foster placement with the adoptive parents, in

the format as provided in the Schedule XII and upload the same on the

Designated Portal along with photographs of the child within ten days

from the conduction of such report.

(2) In case the adoptive parents relocate, they shall inform the agency

which has conducted their home study and the District Child Protection

Unit of the district where they relocate.

(3) The District Child Protection Unit of the district of the current

residence of the prospective adoptive parents shall prepare the postadoption

follow-up report and upload the same on the Designated Portal

within ten days from the conduction of such report:

Provided that first follow-up report of the adopted child shall be done

within three months from the date of pre-adoption foster care.

(4) In case of non-adjustment of both the child and the adoptive family with each other, the Specialised Adoption Agency or the District Child Protection Unit shall arrange the required counselling for such adoptive parents and adoptees or link them to the counselling services available within the district or state within seven days with due intimation to the State Adoption Resource Agency and the District Magistrate:

Provided that in case of non-compliance for three consecutive post

adoption follow-ups the District Child Protection Unit shall prepare the

social investigation report and inform the Child Welfare Committee for

further action as may deem fit.

(5) Procedure of disruption- In case of disruption in in-country

adoption.-

(a) at the stage of pre-adoption foster care before filing an adoption

application, the child shall be taken back to the Specialised Adoption

Agency with information to District Child Protection Unit and State

Adoption Resource Agency;

(b) at the stage of pre-adoption foster-care after the application has

been filed with the District Magistrate through District Child Protection

Unit, the child shall be taken back by the Specialised Adoption Agency

and adoption application shall be withdrawn with prior permission

from the Child Welfare Committee with intimation to the District Child

Protection Unit and the State Adoption Resource Agency and the status

of the child on the Designated Portal shall be updated by the Specialised

Adoption Agency accordingly:

(c) where the child has been taken to another state during the adoption

process, the relocation of the child shall be coordinated by the State

Adoption Resource Agency in the state where the child is currently

residing and the State of origin.

(6) Procedure for dissolution-In case of dissolution in in-country

adoption.-

(a) In case of dissolution, the application for annulment of adoption

order shall be filed by the Specialised Adoption Agency with the District

Magistrate through District Child Protection Unit;

(b) No application should be filed until two counselling sessions have

been completed by the local Specialised Adoption Agency or District

Child Protection Unit before making any decision concerning disruption

or dissolution;

(c) Post dissolution order, the child shall become legally free for

adoption;

(d) The Specialised Adoption Agency or the District Child Protection

Unit shall update the child’s status as legally free for adoption on the

Designated Portal within three days.

(7) Where the Indian adoptive parents move with the child abroad,

within two years from the date of pre-adoption foster care, the

concerned Indian Diplomatic Mission in the country of arrival in case

of Non-Hague countries and Authorised Foreign Adoption Agencies or

Central Authorities in Hague countries, shall be intimated at least

fifteen days in advance through a written communication for the

purpose of remaining follow up reports by the adoptive parents with

their full contact details at the new place.

(8) The onus of getting the balance post-adoption follow-up is with the

adoptive parents and they have to bear the professional charges on

their own, and further the adoptive parents shall give an undertaking

to the Authority to that effect.”

25 Apart from this, there is also provision for dissolution on incountry

adoptions as the Application for annulment of adoption

order can be filed by the Specialized Adoption Agency before the

District Magistrate through DCPU and post-dissolution order, the

child shall become legally free for adoption.

In order to give efficacy to the Amendment, the Ministry of

Women and Child Development, Government of India, has also

published a brochure on adoption for the District Magistrate with

the emphasis on role and responsibilities of the District

Magistrate, by clearly providing information about the process.

The Ministry has also created a Designated OnLine Portal in form

of Child Adoption Resource Information and Guidance System

(CARINGS) for creating links through a robust fresh management

system designed to bring transparency in the adoption system

and for curtailing delay at various levels.

The Specialized Adoption Agency (SAA) is directed to

update the child pre-adoption foster care information and

adoption application information is directed to be reflected on

CARINGS-DCPU in module where the DCPU scrutinize requisite

documents within 5 days of receipt of the documents from SAA

before forwarding case to the District Magistrate for issuance of

adoption order. The District Magistrate is directed to issue

Adoption Order within a period of two months from the date of

filing of Application with CARINGS-DM Module and District

Magistrate is also directed to generate and upload Adoption Order

from the Portal.

We find the process to be now implemented with timelines

and has made the same meaningful as expediency in passing of

the Adoption Orders is the real success of the Juvenile Justice

Act, as it intend to rehabilitate the subjects i.e. abandoned,

orphaned and surrendered children by rehabilitating them

through adoption process.

26 With the Regulations framed by CARA, governing the entire

process of adoption, being set out with all minute details, we do

not find any ground to believe that the District Magistrate will

not be in a position to exercise its role in an effective manner as

what function was entrusted to the ‘Court’ is now handed over to

the ‘District Magistrate’, who with the aid and assistance of the

Regulations framed by CARA, in exercise of the power conferred

under Clause (c) of Section 68 read with Clause (3) of Section 2

of the Juvenile Justice (Care and Protection of Children) Act,

2015, has framed the Regulations governing the whole arena of

the process of adoption which has involved various other

Agencies and has determined the eligibility of the adoptive

parents and the availability of child for adoption being declared

free to the prospective adoptive parents by setting out the

criteria for both of them.

Apart form this, since the Affidavit filed by the Union of

India has categorically stated that upon the District Magistrate

being envisioned as Child Protection Head, as per the

recommendations of the Parliamentary Standing Committee,

appropriate training shall be imparted to the District Magistrates

and Divisional Commissioners with involvement of the Ministry

of Women and Child Development, CARA and National Institute

of Public Cooperation and Child Development (NIPCCD) and we

find that with the introduction of the said Provision in the year

2021, by this time the District Magistrates have equipped

themselves with the necessary knowledge and the niceties which

are required to be followed under the guidance of CARA in

implementing the wholesome object of giving and taking of a

child in adoption.

27 The argument that by appointment of the District

Magistrate, the doctrine of separation of powers is violated, is also

without any merit and substance as under various statutes, the

Executive Authorities are conferred with quasi judicial functions

and since it is well expected that a strict separation of powers is

neither possible nor desirable and there are some overlapping

functions, which are required to be discharged, we do not find

substance in the said argument.

As indicated by the statement of objects and reasons of the

2021 Amendment, the procedure for adoption was intended to be

expedited and if the Parliament deemed it necessary to bring any

change in the system of adoption with an intention of expediting

the process by replacing the previous court base system, by

conferring the powers upon the District Magistrate to act as a

Competent Authority to issue final Adoption Orders and to

supervise the Adoption Agencies, check compliances and ensure

the child-base interest, we find no illegality in the said proposed

action.

28 We have noted that though the Bombay High Court had

granted stay to the transfer of pending adoption matters to the

District Magistrate, by directing that ongoing cases shall continue

in the Court, in other States the Amendment of 2021 has come

into force and has yielded success.

In light of the aforesaid discussion, since we do not find any

merit and substance in the challenge raised by the Petitioners,

both the Petitions stand dismissed.

Pending Interim Applications also stand disposed of.

At the same time, we vacate the interim order dated

10/01/2023 and permit the matters to be dealt with by the

District Magistrate.

We must also clarify that in the interregnum the orders

which are passed by the Court in adoption matters shall be

treated as legally and validly passed.

[MANJUSHA DESHPANDE, J.] [BHARATI DANGRE, J.]