FAMILY LAW

TOPIC – LAKSHMI KANT PANDEY V/S UNION

OF INDIA

BACKGROUND OF THE CASE

Lakshmi Kant Pandey, an advocate, wrote a letter complaining about the malpractices carried
out by the social organisations and welfare agencies indulged in the work of offering Indian
children to foreign parents. Indian children, under the pretext of adoption are exposed to long
journeys to foreign countries and are then placed in Shelter and Relief homes. In due course
of time, they become prostitutes and beggars. The letter was treated as a writ petition and on
1st September, 1982, the court issued a notice to the Government of India, Indian Council of
Child Welfare and Indian Council of Social Welfare to appear in answer to the writ petition
and help the court in laying down the norms and principles which should be followed in
determining whether a child should be adopted by foreign parents and if so, the procedure to
be followed for ensuring the maximum welfare of the child.

FACTS OF THE CASE

The letter addressed by Lakshmi Kant Pandey describing the malpractices carried out by
various voluntary organisations and social organisation engaged in the work of inter-country
adoption was considered as a writ petition by the Court and the court asked the Government
of India, Indian Council of Social Welfare and Indian Council of Child Welfare to assist the
court in laying down the norms and principles which should be followed in determining
whether a child should be adopted by foreign parents and if so, the procedure to be followed
for ensuring the maximum welfare of the child. On 30th September, 1982, the Indian Council
of Social Welfare submitted its report consisting of various recommendations and
suggestions for consideration by the court. Many voluntary organisations and social welfare
agencies expressed their desire to participate in the hearing of the court and wished to present
valuable material before the court. Some of the organisations were- Barnen Framfoer Allt
Adoptioner, S.O.S Children’s Villages of India. On 12th October, 1982, the court issued an
order allowing them to intervene and make their submissions to the court and the writ petition
was adjourned to 9th November, 1982. The court directed the union of India to gather required
information and furnish the names of any organisation except Indian council of Social
Welfare and Indian council of Child Welfare which are engaged in offering Indian children to
foreign parents for adoption before the next hearing. On 9th November 1982, the court
permitted eight specified institutions and organisations to file affidavits or statements
containing requisite information regarding the adoption of Indian children by foreign parents
on or before 27th November, 1982. The court issued a notice of writ petition to the State of
West Bengal asking it to file its statement or affidavit on or before 9 th November, 1982. Also,
the Court directed the Superintendent of Tees Hazari Courts to produce the quarterly reports
in reference to the orders made under the Guardians and Wards Act, 1890 entrusting the
custody of Indian children to foreign parents during the period of five years immediately
before 1st October 1982. The hearing of the writ petition was adjourned to 1 st December,
1982.

PETITIONER’S ARGUMENT
Lakshmi Kant Pandey alleged that various voluntary associations and social welfare
organisations associated with inter-country adoption are engaged in malpractices. He argued
that the Indian children under the pretext of adoption have to undertake long journeys which
are dangerous for them. Upon reaching the foreign countries, they are placed in Shelter and
Relief homes. They are exposed to various horrendous activities. In due course of time, they
have to live the life of beggars and prostitutes.

RESPONDENT ARGUMENT
The Indian Council of Social Welfare filed the copies of Adoption of Children Bill 1972 and
Adoption of Children Bill 1980. Also, the Indian Council of Social Welfare submitted two
lists giving the names of and particulars of recognised agencies in foreign countries engaged
in inter-country adoption and the other list containing the names and particulars of the
institutions and organisations in India engaged in inter-country adoption.

GUARDIAN AND WARDS ACT, 1890

The Guardians and Ward’s Act, 1890 lays down certain rights and duties of a guardian of a
ward. In Lakshmi Kant Pandey vs. Union of India, provisions of Section 8 of the Guardians
and Wards Act, 1890 were involved. It states that the main motive of giving the child for
adoption should be the welfare of the child. Since there is no statutory enactment in India
relating to the adoption of Indian children by foreign parents, the Court had to take into
consideration the provisions of the Guardians and Wards Act (8 of 1890). The Guardians and
Wards Act, 1890 lays down the normative and procedural safeguards to be followed in cases
of adoption of children.

ARTICLE 14
Article 15 is a Fundamental Right enshrined in the Indian Constitution. Article 14 states that
the state shall not deny to any of its citizens the equality of law and equal protection of laws.
In Lakshmi Kant Pandey vs. Union of India Clause (3) of Article 15 was brought into light.
Article 15(3) states that the state can make special provisions inter alia for children.

ARTICLE 24
Article 24 states that no child below the age of fourteen years shall be allowed to work in
factories or mines or engaged in hazardous activities. Therefore, to reduce the cases of child
labour, it was held in Lakshmi Kant Pandey vs. Union of India, that adoption of children
would safeguard their interests and welfare and protect them against exploitation and against
moral and physical abandonment.

ARTICLE 39
According to Article 39 of the Constitution of India, the State shall ensure that the legal
system provides justice, on the basis of equal opportunity and shall, in particular provide free
legal aid. In Lakshmi Kant Pandey vs. Union of India clause (e) and (f) of Article 39 were
highlighted by Justice Bhagwati which states that the state shall direct its policy towards
securing inter alia that children of tender age are not abused and the citizens should not be
forced to enter into a vocation unsuitable for their ages and strength. They should be given
enough facility to develop in a healthy manner. Thus, adoption of children would give
children a healthy environment to grow and develop and ensure that they are protected
against exploitation and other heinous activities.

UNITED NATIONS
There has been a great concern for the welfare of the children at the international forum. This
led to the adoption of Declaration of the Rights of the Child by the General Assembly of the
United Nations on 20th November 1959. The Declaration of the Rights of the Child states that
children are physically and mentally immature. Therefore, it is the duty of the mankind to
provide these children special safeguards, care and legal protection before as well as after
birth. The Declaration of the Rights of the Child also asserts that every child has a right to
love and to be loved and should grow up in an atmosphere of love and affection. A child can
get love and affection in his/her own biological family. However, if the child has been
abandoned and the biological parents cannot be traced, then, the next best alternative would
be to look for adoptive parents for the child. But, if no family can be found within the country
in which the child resides, then, inter-country adoption is the best option. Inter-country
adoption is advocated so as to ensure that the child grows in a congenial environment.

INDIA AND SWEDAN

The Swedish Embassy in Annexure II, which has been filed by Ulf Walters on its behalf, has
mentioned the names of seven Swedish organisations or agencies recognised for inter-country
adoption. These organisations or agencies are working under the Swedish Ministry of Social
Affairs. In response to this, the Indian Council of Social Welfare has also given a list of
government recognised agencies or organisations dealing in inter-country adoption to foreign
countries.

JUDGMENT
After taking into consideration various reports, recommendations formulated by various
voluntary associations and social organisations, Justice Bhagwati, gave his final verdict. The
verdict said that in order to ensure the welfare of the children they should be provided a
congenial environment which could be given only by biological parents. However, if the
child is abandoned, efforts should be made to trace biological parents of the child. If the
biological parents could not be traced, then searching for adoptive parents within the native
country of the child is next best alternative. If adoptive parents within the native country of
the child cannot be found within a maximum period of two months, then, looking for
adoptive parents outside the country is the best alternative. However, the application from a
foreigner wishing to adopt a child must be sponsored by a social or child welfare agency
recognised by the government of the country in which the foreigner resides. The application
of the foreigner should be supported by a home study report along with a recent photograph
of the family, and other details showing the social and financial status of the foreigner along
with his declaration and appropriate security that he shall maintain the child. A copy of the
home study report should be issued to Indian Council of Child Welfare or Indian Council of
Social Welfare so as to carefully examine the home study. If the biological parents of the
child are known, they should be provided with social work services to consider all the
alternatives for their child’s future. Even, if they decide to give the child for adoption, a
further period of three months should be given to them to reconsider their decision. However,
they cannot reconsider their decision after the completion of three months. Also, the identity
of the parents who adopted the child should not be revealed to biological parents. The
proceedings of the application of guardianship should be held by the court in camera and they
should be kept confidential and after the order on application of guardianship is made, all the
papers, documents, proceedings should be sealed. Also, a child study report containing
information about child should be provided to foreigner wishing to adopt the child. Thus,
foreigner wishing to adopt the child can be informed about the biological parents of the child.
If the child is to be given in inter-country adoption, it is desirable that the child should be
adopted before the completion of three years. Even children between the ages of three and
seven years can be given in inter-country adoption. However, it is recommended that before
giving the children above the age of seven years, their wishes must be ascertained by a
professional. Also, a child under the supervision of a welfare or social agency in one state can
be brought to another state for the purpose of adoption. After the arrival of the child in
foreign country, the child should be adopted within a period of two years. Such information
along with the recent photograph of the child should be furnished to the court as well as the
social or welfare agency dealing with their case in India. Also, the progress report of the child
should be sent quarterly in the first two years and half-yearly for the next three years. These
are the principles and norms which must be adhered to for giving a child in inter-country
adoption.
CONCLUSION
The judgment delivered by Justice Bhagwati in Lakshmi Kant Pandey vs. Union of India
aims to ensure welfare of children by providing them a congenial environment where they
can be loved. If the child is supposed to be given in adoption, first priority should be to
ensure that the child gets adopted within his/her own native country. However, if the child
cannot be placed within a suitable family in his/her own country, then, inter-country adoption
is the next best alternative. In order to protect the child against exploitation, human-
trafficking, certain safeguards and procedures have been mentioned in the judgment. The
judgment aims to protect children against the horrendous activities carried out under the guise
of inter-country adoption. Inter-country adoption is considered to ensure welfare of children
because people in India are hesitant to adopt children because they do not want to raise
someone else’s child. As a result, most of the children are abandoned and lead the life of a
destitute or become beggars, criminals or prostitutes in future. Therefore, inter-country
adoption ensures the welfare of children.