DEBARATI NANDEE (Petitioner) Vs. TRIPTI GURHA & ANR (Respondents )
CONT.CAS(C) 563/2023
(CORAM: HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD)
Facts: The challenge in the present Writ Petitions is to adjudicate on the short issue as to whether the decision of the Steering Committee Resource Authority, Central Adoption Resource Authority, dated 15th February 2023 and a subsequent Office Memorandum dated 21st March 2023 affirming the decision of retrospective application of the Adoption Regulations, 2022, to pending applications of registered prospective adoptive parents is valid.
Issue: Whether right to adopt can be raised to the status of a fundamental right within Article 21?
Arguments on behalf of counsel for petitioner:
The Petitioners contend that the retrospective application of the Adoption Regulations 2022 via the Respondent No 2’s decision dated 15.02.23 is arbitrary and violative of Article 14 of the Constitution since it is settled law that Regulations and Rules in the form of delegated legislation cannot be applied retrospectively in the absence of a express statutory authorisation to that effect, i.e. in the absence of a statutory provision, a delegate cannot make a delegated legislation with retrospective effect. It is also submitted that the decision of the Steering Committee suffers from excessive jurisdiction as the 2022 Regulations do not vest any right on the Committee to modify the way they are implemented
Arguments on behalf of counsel for respondents:
Per contra, the learned counsel for the Respondents submitted that as per the scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Adoptions Regulations formulated under it thereof, mere registration as Prospective Adoptive Parents does not guarantee, mandate or confer an indefensible right for adoption of a child. Section 57 of the Act read with the Regulations merely outlines the eligibility of the Prospective Adoptive Parents and such a criteria ought to be fulfilled till an order finally affirming the adoption is passed by the District Magistrate under section 61 of the Act. Therefore, conditions to be complied with, if changed via a delegated legislation does not imply that the requirement to its mandatory satisfaction would render the application of such a legislation retrospectively.
Held: The court dismissed the present writ petitions and held that, “it is settled that the right to adopt cannot be raised to the status of a fundamental right within Article 21 nor can it be raised to a level granting PAPs the right to demand their choice of who to adopt. The adoption process in entirety operates on the premise of welfare of children and therefore the rights flowing within the adoption framework does not place the rights of the PAPs at the forefront. There can be no expectation at the pre-referral stage towards the adoption of a normal child, in the absence of any vested rights of legislative assurance towards consideration for the same.”
