Adoption Case : Laxmi Kant Pandey vs Union of

India
The petitioner, an advocate of the Supreme Court addressed a letter in public interest to the
Court, complaining of malpractices indulged in by social organisation and voluntary agencies
engaged in the work of offering Indian Children in adoption to foreign parents, the petitioner
alleged that not only Indian Children of tender age, in the cases of pseudo-adoption being
“exposed to the long horrendous journey to distant foreign countries at great risk to their lives
but in cases where they survive and where these children are not placed in the shelter and
Relief Houses, they in course of time become beggars or prostitutes for want of proper care
from their alleged foster parents.” The petitioner therein sought relief restraining Indian based
private agencies “from carrying out further activity of routing children for adoption abroad”
and directing the Government of India and other government agencies to carry out their
obligations in the matter of adoption of Indian Children by Foreign parents.

The Supreme Court in this case gave various directions the essence of these directions is as
follows:
(1)Every effort must be made first to see if the child can be rehabilitated by adoption within
the country and if that is not possible, then only adoption by foreign parents, i.e. ’inter-
country adoption’ should be acceptable.
 (2) There is a great demand for adoption of children from India and consequently there is
increasing danger of ill-equipped and sometimes even undesirable organisations or
individuals activating themselves in the field of inter-county adoption with a view to
trafficking in children.
 (3) Following are the requirements which should be insisted upon so far as a foreigner
wishing to take a child in adoption is concerned:
Every application from a foreigner desiring to adopt a child must be sponsored by a social or
child welfare agency licensed by the government of the country in which the foreigner is
resident. No direct dealing is allowed in such cases due to following:
1. It will help to reduce the possibility of profiteering and trafficking in children, as a
foreigner in his anxiety to securea child for adoption, be induced or persuaded to
pay any unconscionable or unreasonable amount which might be demanded by the
agency or individual procuring the child. It would be almost impossible for the
court to satisfy itself that the foreigner would be suitable as a parent for the child
and would be able to provide a stable and secure family life to the child and would
be able to handle trans-racial, trans-cultural and trans-national problems likely to
arise from such adoption, because, where the application for adopting a child has
 not been sponsored by a social or child welfare agency in the country of the
foreigner, there would be no proper and satisfactory home study report on which
the court can rely.
2. Where the application is made directly, there would be no authority or agency in
the country of the foreigner who could be made responsible for supervising the
progress of the child and ensuring that the child is adopted at the earliest in
accordance with law and grows up in an atmosphere of warmthand affection with
moral and materialsecurity assured to it.
3. As per record, in every foreign country where children from India are taken in
adoption, there are social and child welfare agency licensed or recognised by the
government and therefore there would be no difficulty if adoption is required to be
sponsored by asocial or child welfare agency licensed or recognised by the
government of the county in which the foreigner resides.
4. There may be more than one such social or child welfare agencies, but every such
social or child welfare agency must be licensed or recognized by the government
of the foreign country and a foreigner could not be appointed as guardian unless
the application has been sponsored by such agency.
(4) Safeguards for biological parents (both parents/father/mother:
Before a decision re surrender of the child by the biological parents, they should be informed
about various possibilities and implications of adoption, like adoption by a foreigner, no
connection with the child, etc.
Also they should not be held in duress for such surrender of the child and must be given three
months’ time to reconsider their decision. Though, they should be properly assisted in taking
the decision of surrender/relinquishment, “by the institution or center or home for child care
or social or child welfare agency to which the child is being surrendered.”
But in order to eliminate any possibility of mischief and to make sure that the child has in
fact been surrendered by its biological parents, the Court gave various guidelines:
 It is necessary that the institution or center or home for child careor social or child welfare
agency to which the child is surrendered by the biologicalparents, should take from the
biologicalparents a document of surrender duly signedby the biological parents and attested
by atleast two responsible persons and suchdocument of surrender should not only containthe
names of the biological parents and theiraddress but also information in regard to thebrother
of the child and its background,health and development.
Where the child is an orphan, destituteor abandoned child (and their parents not known), such
institution or center or home in whose care the child hascome, must try to trace the
biologicalparents of the child.
 If after being traced,the biological parents do not want to take back the child, thenthe same
procedure as outlined above shouldas far as possible be followed.
 If forany reason the biological parents cannot betraced, then there can be no question
oftaking their consent or consulting them.
Further, the biologicalparents should not be induced or encouragedor even be permitted to
take a decision inregard to giving of a child in adoptionbefore the birth of the child or within
aperiod of three months from the date ofbirth, so that they can take appropriate decision
regarding rearing/ surrender of the child and/or to allow child to overcome any health
problem experienced after birth.
A Central Adoption Resource Agency (CARA), to be set up by the Government of India with
regional branches at a few centers which are active in inter-country adoptions, was held as
desirable, for following purposes:
 Such agency may act as a clearing house of information in regard to children available for
inter-country adoption and all applications by foreigners for taking Indian children in
adoption can then be forwarded by the foreign social or child welfare agency to such Central
Adoption Resource Agency (CARA) and the latter can in its turn forward them to one or the
other of the recognised social or child welfare agencies in the country.
 Every social or child welfare agency, taking children under its care, could be required to
send to the CARA the names and particulars of children, under its care, available for adoption
and the names and particulars of such children could be entered in a register to be maintained
by the CARA for adoption.
Thus these comprehensive guidelines were followed in some way by the Government of
India and CARA was formed and which published”Guidelines for adoption”. Under these
guideline severy State has a VCA (Voluntary Coordinating Agencies) to co-ordinate and
oversees inter-stateadoptions.In reality, in some States the VCA is a non-governmental
organization (NGO) and in some other States the Department of Women and Child
Development is the VCA.
Lakshmi Kant Pandey v. Union of India, 1984 AIR 469
The Supreme Court in this public interest litigation considered the issue of alleged adoption
agency malpractice and neglect when approving inter-country adoptions. The Court in its
judgment set forth safeguards such that adoptions by foreigners would be handled in a
manner promoting children’s welfare and their right to family life.
Date of the Ruling: Feb 6 1984, Forum: Supreme Court of India, Type of Forum: Domestic
Summary: 
The petitioner, Lakshmi Kant Pandey, an attorney, wrote to the Supreme Court (Court)
alleging neglect and malpractice on the part of social organizations and private adoption
agencies facilitating the adoption of Indian children to foreign parents.  He noted the long and
hazardous journeys these children made to foreign countries, along with instances of neglect
they experienced from their adoptive parents resulting in impoverishment or sexual
exploitation of the children. The Court treated his letter as a writ petition (a filing made with
a higher court to secure prompt review of an issue) and this instituted the basis of the public
interest litigation.
In its judgment, the Court noted that the absence of legal regulation of inter-country
adoptions in India could cause enormous harm to Indian children who may, for example, be
exposed to the abuses of profiteering or trafficking. In order to protect the welfare of
children, the Court, in consultation with several social or child welfare institutions, laid out a
comprehensive framework of normative and procedural safeguards for regulating inter-
country adoption as protection against abuse, maltreatment or exploitation of children and to
secure them a healthy, decent family life. While formulating standards and procedures the
Court referenced various relevant laws and policies including Articles 15(3), 24, and 39 of
the Indian Constitution regarding child welfare, and the principles embodied in the U.N.
Declaration on the Rights of the Child (1959). The delineated safeguards include, amongst
several others, the requirement that foreigners wishing to adopt be sponsored by  relevant
licensed agencies in their own country, that no adoption application from a foreigner should
be entertained directly by any adoption agency in India, that agencies working on inter-
country adoptions and licensed by the Government of India must meet certain stipulated
criteria and undertake specific  responsibilities in ensuring the safety and well-being of
adopted children, and that all inter-country adoption proceedings must be approved by the
local courts.
Enforcement of the Decision and Outcomes: 
The guidelines set forth by the Supreme Court regulated adoption over many years and
became an effective tool for child rights activists.  Following the judgment, some of the
social or child welfare agencies engaged in placement of children in inter-country adoption
felt that there were certain difficulties in implementing the principles and norms laid down in
our judgment and petitioned the Court for clarification. The Court addressed these issues in a
supplemental judgment dated 27th September, 1985. Furthermore in another case, where the
petitioners alleged non-compliance with the adoption safeguards, the Supreme Court held that
any adoption in violation of or non-compliance with the directives set forth in this judgment
may lead the adoption to be declared invalid and expose the person concerned to strict action
including prosecution.
The Government of India has complied with a number of the Court’s directives including
setting up a Central Adoption Resource Agency CARA, which framed guidelines for the
adoption of Indian children, codifying the safeguards set forth by the Supreme Court
judgment and other related decisions by the Court. Moreover there were the supplemental, if
not consequential legislative innovations of the Juvenile Justice (Care And Protection of
Children) Act, 2000 (amended in 2006) and the Juvenile Justice (Care and Protection of
Children) Rules, 2007.  However India still does not have a comprehensive national law on
adoption. For years, now, NGOs have been urging the government to pass relevant national
legislation as unscrupulous practices continue in the area of inter-country adoptions.
Groups involved in the case: 
Apart from the Government of India, several government agencies and social welfare
organizations (both national and international) filed affidavits and statements before the court
in this case. The institutions included the Indian Council of Social Welfare, Enfants Du
Monde, Missionaries of Charity, Enfants De L's Espoir, Indian Association for promotion of
Adoption Kuan-yin Charitable Trust, Terre Des Homes (India) Society, Maharashtra State
Women's Council, Legal Aid Services West Bengal, SOS Children's Villages of India and the
Bhavishya International Union for Child Welfare. The Supreme Court explicitly
acknowledged their contribution in its judgment stating that the valuable recommendations
provided for the consideration of the Court helped the judges formulate the principles and
norms to be observed in the case of inter-country adoptions.
Significance of the Case: 
Given that the Court treated a letter as a petition, this case is an excellent example of how the
procedural innovation of public interest litigation in India has eased rules of standing (which
determine who can bring a case) towards making the court system more accessible to
disadvantaged sections of society. It also stands as an example of the judicial activism of the
Indian Supreme Court. Confronted with legal vacuum on an issue with huge social
implications, the Court did not hesitate to issue elaborate guidelines to regulate adoptions and
protect children from prostitution and slave labor.