New Delhi, Feb 20 (IANS): The Supreme Court Wednesday said that Muslims can adopt a child under the amended juvenile justice law and its enforcement could not be impeded by the Muslim personal law.
A bench of Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh said, "To us, the (juvenile justice) act is a small step in reaching the goal enshrined by article 44 of the constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute."
Article 44, under the directive principles of state policy, says that the state shall endeavour to secure a uniform civil code for all people throughout India.
The court noted that the Juvenile Justice Act, 2000, as amended in 2006, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the act, rules and the Central Adoption Resource Agency (CARA) guidelines.
It said that the act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the act, if he so desires. "Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him," said the court.
However, the court stressed that the "right to adopt and right to be adopted" was not a fundamental right.
Pointing to constant evolution of fundamental rights in vibrant democracy, Justice Gogoi, speaking for the bench, said: "All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by article 21 of the constitution."
The court's opinion came while addressing the petition of social activist Shabnam Hashmi, seeking the recognition of the right to adopt and to be adopted as a fundamental right.
The All India Muslim Personal Law Board objected to such a declaration contending that their personal law does not recognize adoption though it does not prohibit a childless couple from taking care and protecting a child with material and emotional support.
It was contended that Islamic law does not recognize an adopted child to be at par with a biological child.
However, the court said: "At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved."
"The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date."
It noted that the legislature, "which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect".
"Conflicting viewpoints prevailing between different communities, as on date, on the subject makes the vision contemplated by article 44 a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint," it said.
The court noted that Hashmi's 2005 plea to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. stands addressed in the course of the changes in laws on adoption, the amendment to juvenile justice act 2006 and rules there under.