July 6, 2021 8:47:13 pm
Written by Ravi Singh Chhikara and Navneet Singh
When Covid-19 hit the country, no one knew how devastating its impact would be on the lives of children. However, as the infections started rising and people started losing those close to them, it was clear that many children would get orphaned or abandoned. On June 1, the National Commission for Protection of Child Rights (NCPCR) informed the Supreme Court that more than 9,300 children in the country had lost their parents or were abandoned during the pandemic. However, as Justice Rao said, the actual number of children abandoned or orphaned may be much more than what has been cited in official and news reports. Further, this havoc has increased child trafficking, especially of girls.
How can India mitigate the agony of these orphaned and abandoned children who are, undoubtedly, the future of this country? Covid-19 has placed before the country an opportunity to gift a new life to two communities simultaneously. One, by giving orphaned and abandoned children their right to have parents and the second by giving LGBTQ+ couples their rights to have children. But, unfortunately, these rights are not recognised anywhere in our Constitution or any other law. Still, they need to be recognised for the public’s welfare.
India needs to abrogate its colonial-era policy that couples belonging to the LGBTQ+ community cannot adopt a child. The Juvenile Justice Act, 2015 and Adoption Regulations, 2017 lay down a requirement for adoption, regardless of religion. Although drafted in modern times but based on colonial rule, it provides that “no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship”. Thus, a couple who cannot lawfully marry in India cannot fulfil this requirement.
This policy not only deprives the LGBTQ+ community members of their right to adopt a child, but also a child of their right to have the affection and love of parents. In the case of Lakshmi Kant Pandey vs. Union of India, the Supreme Court held that “Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.” The Court further held that the best alternative for an orphaned and abandoned child is to find adoptive parents rather than growing up in an orphanage or an institution where it will have no family life and no love and affection of parents. Most importantly, the Court pointed out that given the socio-economic conditions prevailing in the country, the child might have to lead life as destitute, half-clad, half-hungry, and suffering from malnutrition and illness. Also, an Expert Group that met in Geneva in December 1978 had adopted a “Draft Declaration on social and legal principles relating to the protection and welfare of children with special reference of foster placement and adoption, nationally and internationally”, which held that when biological family care is unavailable, substitute family care should be considered (Article 4).
The Court, by expressly recognising that “every child has a right to a family” has recognised that a child has a right to be adopted. Further, Article 39(f) expressly directs the government to draw policies so as to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity. Therefore, forcing a child to live in an institution and depriving them of the rights of having their own family is equivalent to depriving them of living a life full of freedom and dignity and thus, is against our Directive Principles of State Policy. Moreover, in the case of Indian Hotel & Restaurant Association & Anr. Vs. The State of Maharashtra, it was held that the state could not thrust its own notion of morality on society. Depriving a child of being adopted by the LGBTQ+ community and depriving LGBTQ+ to adopt a child is equivalent to the state enforcing its stereotypical morality.
The case of Navtej Singh Johar v. Union of India, which decriminalised an act of consensual sexual intercourse between same-sex couples, came in 2018. It places the couples of the LGBTQ+ community at par with other couples. Similarly, Indian Hotel & Restaurant Association & Anr. Vs. The State of Maharashtra came in 2019. The Juvenile Justice Act and Adoption Regulations came in 2015 and 2017, respectively. Thus, as a result of the jurisprudence developed in these two cases, which directs the state to forgo its stereotypical notions, these laws automatically become contrary to the judgments. These laws are violative of Article 14, which ensures equality to all; Article 15, which prohibits discrimination on the ground of sex; and Article 19, which grants the right to freedom of expression.
(Chhikara and Singh are final year law students at the Faculty of Law, University of Delhi)