Wednesday, Oct 01, 2014

Perils of restraint

Written by Upendra Baxi | Posted: February 26, 2014 12:31 am | Updated: February 26, 2014 3:56 am
The court’s refusal to recognise that the right to  adopt is an integral part of Article 21, which guarantees the rights to life and liberty, is striking. PTI The court’s refusal to recognise that the right to
adopt is an integral part of Article 21, which guarantees the rights to life and liberty, is striking. PTI

On gender justice and human rights, court can’t hold back or abdicate responsibility.

At a time when millions of orphans await legitimate adoption, the Supreme Court’s judgment in Shabnam Hashmi versus Union of India and Others is managerial, howsoever cleverly crafted. It takes the “small step” of recognising adoptions under the Juvenile Justice (Care and Protection of Children) Act, 2000, and the rules flowing from it, especially the amendments of 2006. Now, Indian Muslims may adopt Muslim children.

The act “does not mandate any compulsive action” by a foster or adoptive parent. It is wholly facilitative and no person violates any obligation to adopt, simply because there is no duty imposed on any one. As with the Special Marriage Act, 1954, very few Muslims would take recourse to the Juvenile Justice Act for adoption.

More striking is the court’s refusal to recognise that the right to adopt is an integral part of Article 21, which guarantees the rights to life and liberty. After nearly two decades of social action litigation, which has expanded the judicial role in almost every sphere of national life, to say that the Supreme Court has no constitutional responsibility to discharge the obligation under Article 44 to strive towards the enactment of a uniform civil code (UCC) is not convincing. The court had the opportunity to do a repeat of the larger bench’s decision in the Shah Bano case, however meagre and provocative it might have been.

Instead, the Supreme Court now says that the “elevation” of this right to the status of a fundamental right under Article 21 will have to wait for another day. The court stresses that it is for Parliament to meet the constitutional obligations of Article 44, that it is for future generations to craft a UCC once there is “a dissipation of conflicting thought processes… prevailing in the country”. Judicial self-restraint stands commended; judicial activism stands downgraded.

One may still ask the court: How long will Indian Muslim children have to wait till they can rightfully be adopted by other pious Muslims? Is nearly 65 years of the Indian republic not long enough to fulfil the obligation of a UCC? Is the All India Muslim Personal Law Board (AIMPLB) to be the decisive voice for them or the Constitution of India, which gives them the freedom of both conscience and religious beliefs and practice, as well as the right to complex equality? How about India’s own obligations under the United Nations Convention on the Rights of the Child? What happens to Indian law, policy and administration in that context? Finally, what would happen if succeeding generations were to ignore, continued…

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