Bombay High Court upholds amendment transferring adoption cases from courts to district collectors

The Bombay High Court has upheld a 2021 amendment to the Juvenile Justice (Care and Protection of Children) Act that shifted the power to pass child adoption orders from civil courts to district magistrates (collectors) [Nisha Pradeep Pandya alias Nisha Amit Gor and another]..A Division Bench of Justices Bharati Dangre and Manjusha Deshpande noted that executive authorities are conferred with quasi-judicial functions under various laws. The Court also noted that when district magistrates (now designated as “Child Protection Head”) deal with adoption matters, they are governed by detailed Adoption Regulations, timelines and training programmes.“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,” the Court held. .The Court was dealing with a two petitions on the issue. The lead petition was filed by a Mumbai-based couple who assailed the 2021 Amendment Act and the 2022 Rules insofar as they have replaced the word ‘Court’ with ‘District Magistrate’ when it came to designating the authority passing child adoption orders. The petitioners termed the change violative of Articles 14 and 21 of the Constitution and the basic structure doctrine of separation of powers. A connected petition by one Mohammed Javid Khan and another raised a similar challenge in the context of a foreign adoption petition. The petitioners contended that the transfer of judicial powers to the district magistrate (executive) was ultra vires the Constitution.The pleas argued that passing orders signalling the acceptance of a child in adoption is a judicial function, which could not be delegated to an executive authority like a district magistrate.They stressed that adoption is a sensitive process that must be handled with judicial expertise. The petitioners submitted that courts, acting as parens patriae, are better placed to secure the child’s welfare. They also warned that, unlike court decrees, orders of district magistrates may suffer from no provision for enforceability or execution..The Union government opposed the petitions, arguing that they were merely academic. It argued that none of the petitioners had actually initiated adoption proceedings and had shown no concrete violation of their fundamental rights. It also pointed out that the amendment was introduced to tackle significant delays in the finalisation of adoption cases in courts. This justified the decision to culminate the adoption process at the level of district magistrate, the government said..After considering the rival submissions, the Court dismissed both petitions before it and also vacated its 2023 interim order that had restrained transfer of pending adoption cases to district magistrates. The Court, however, clarified that adoption orders passed by civil courts while the 2023 stay order was operating, would be treated as legally and validly passed..Advocates Vishal Kanade, Tanaya Patankar, Sameer Sawant, Avinash Gokhale and Amrin Khan appeared for the petitioners. Additional solicitor general Anil Singh with advocates Savita Ganoo, Aditya Thakkar, Adarsh Vyas, Rama Gupta and Anusha Amin appeared for the Union of India. Government pleader PH Kantharia and additional government pleader Jyoti Chavan appeared for the State. .[Read Order]