Adoption - Legal and social perception.

 

Parenthood is the greatest blessing in one’s life.  In olden days there was a belief that if one is not blessed with a ‘Puthra’  he is not free from the NARAKA named “PUM” .  We see  the practices of performing "’Puthrakameshti’   to have a biological child.  Like parenthood the family is the dream of every child.  We have several stories of adoption in our mythologies.  Sita or Janaki in Ramayana was an adopted child of King Janaka.  According the ancient belief,   ‘Kanyadan’ is also to be performed by every parent to attain  heavenly bliss.

Due to many reasons beyond ones control,  there are couples who cannot have their own child. But if they have a will,  they can enjoy parenthood by adopting a child. The child gets a family life and the parents enjoy the heavenly bliss in such cases.

There are several legally authorised  homes  in our country, which take care of children who are devoid of parents. To hold the hand of one such child and make him a member of the family, is a most beautiful feeling and a service. The sad part is that this is  not welcomed by many cultures and families.  Many people may agree to the idea of adopting a child. But there are a lot of people who are not having a biological child and desiring to have a child to be cared and protected, show reluctance to adoption due to the cultural barriers and some social stigma imposed upon them.

Adopting A Child In India- its legal aspects.

Every countries have their own rules of adoption.  Rules for adoption is a way to make sure that the  child has a secured and bright future. Let us examine the very important rules and procedures existing in our land.

 

Who can adopt?

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  A couple who wants to give a child a loving family and healthy environment, can adopt.
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  One can adopt a child under the Hindu Adoption and Maintenance Act 1956 and under Juvenile Justice (Care and Protection of Children) Act 2000 and amended in 2006.
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  Must have a reasonable and regular source of income to support the needs of the child within the family.
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  The couples should be free from  major illness that can come in the way of parenting.
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  Neither of the parents should have a criminal record.
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  The composite age of desirous adoptive couple shouldn’t exceed 90 years for infants.
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  Single parent can adopt up to 45 years of age.
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  The age difference between the parent and the adopted child should be at least 21 years.
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  If the parent is single, there should have additional family support.

Agencies For Adoption – In India CARA is the central agency to regulate adoption. They formulate the principles for adoption.

Application – Prospective adoptive parent(s) should register themselves with the local RIPA / LAPA or Adoption coordinating Agency or with the State Adoption Cell

The Adoption – A home study report of the prospective adoptive parents will be prepared by the social worker of the Agency. To allay the fears and apprehensions of the prospective adoptive parent(s), pre-adoptive counseling sessions will be undertaken by the social worker during the preparation of the home study report. Assessing the ability of a couple to parent a child not born to them is of crucial importance in a successful adoption. Therefore, their suitability to care for an unrelated child is assessed through this home study and counselling. Documents relating to the financial and health status of the prospective parent(s) will be part of the Home Study Report.

The Agency will make a suitable reference from amongst the admitted children legally free for adoption. If no suitable child is available, the family will be referred to the ACA.

After the Home Study has been accepted and approved, a child will be shown to the parent(s). The agency will take care to match a child meeting the description, if any, desired by the parent(s). In case of placement of older children (above the age of 6), both written and verbal consent of the child will be obtained.

 

Post Adoption

Many parents are found to be reluctant to inform the child that they are adopted. In many cases it is found that the practice have created problems in their future life. So it is better that the parents should convincingly inform the child about the adoption in the very early stage.

Adopting a child is a service which is above any rules and regulations. Adoption give pride and protection to a child who till few moments back was an orphanage.  The adoption is a two way process – it gives happiness of child hood  and parenthood at the same time.

Juvenile Justice Act - Is it on the right way?

Juvenile Justice Act 2000 is a central Act enacted for the care, protection. development and rehabilitation of children in need of care and protection and juveniles in conflict with law.

The Act seeks to achieve a uniform legal frame work for Juvenile Justice in the country as a whole so as to ensure that no child in any circumstances is lodged in jail or police lock-up. Juvenile Justice Act provides provisions for proper rehabilitation of children in need of care and protection.

The Act refers to two categories of children -- ‘children in conflict with the law’, and ‘children in need of care and protection’.

The Act also has established two bodies - the Child Welfare Committee (CWC) to specifically address the needs of ‘children in need of care and protection’ and the Juvenile Justice Board (JJB)  to look into the matters concerning ‘children in conflict with the law’.

In the case of ‘children in conflict with the law’, the Act mandates that after being apprehended the child must be brought before the Juvenile Justice Board (JJB) within 24 hours. A child who is in need of care and protection should be produced before the CWC. In many occasions the functions of these two bodies are inter related or supplementary . Mahatma Gandhi once said that, “if every saint has a past then every criminal has a future”. To deal with the child in conflict with law is a very delicate subject. In the case of a child offender, or as we call the child in conflict with law, special care should be given to his future for it is yet in a budding state and is not beyond repair. He should not be exposed to the brutality of common trial procedure. It will shatter his fragile physiological framework . Here the joint effort of these two bodies will do a lot.

A large majority of the children in need of care and protection are from typically poor families; they have had few opportunities to attend regular school. They have already experienced a great deal in their lives within the very short span. Many have faced abuse and exploitation; some have been severely neglected by their parents causing them to leave their families and resort to crime. Many come from broken families. When these children are brought before the CWC or to the observation home they are in immediate need of care and guidance.

Despite the Act, many of the observation homes have not been provided with necessary amenities and they have not achieved the objectives for which they have been set up. They still lack adequate facilities for children in conflict with the law. The children live in a dormitory that they rarely move out of. This is where they eat, sleep, and occasionally play games. A bell rings and they are served food. After this they are left to entertain themselves within the confines of the hall, with a caretaker watching over them all the time. They are not provided with adequate facilities. They have to wash their cloths by themselves. If a washing machine is provided in all Observation homes, this problem can be solved. This type of very silly issues are not attended to by the authorities.

Proper vocational training can be imparted to the children. For this also a proper schedule must be prepared. The efforts to provide better educational opportunities at the observation homes have largely been unsuccessful.

There must also be a change in the mindset. Children who have committed offence should not be left to live with the guilt all their lives. They must be shown some direction as they are unable to cope with life outside once they are released.

The primary task of providing vocational education and training to children is to increase their chances of employment when they are released, and thereby reduce recidivism. However, there has been no sustained commitment to this issue by the government or civil society.

Though this is a Central legislation, it is the duty of the concerned State Governments to constitute the JJB, CWC and Juvenile Police units etc. for the proper implementation of the Act. In many cases it has not been made so far. In kerala however the J J B and C W C has been constituted by the end of April 2009 in all Districts. Th Juvenile Police has not yet been constituted so far as provided in the ACT. The Case in each state differs.

Another area of serious neglect is the shockingly slow justice system. Many of the JJBs show much reluctance in the speedy disposal of the cases. There is no proper review mechanism on the rate of disposal of cases. In some cases the Judicial officers who are chairman of the JJB have not changed the mindset to sit with two social workers and share the status in trying the cases. There are also delays due to witnesses not turning up in court and delays in cross-examination.

Very often members of the Juvenile Justice Board are not well-versed in the Act itself. They are not properly trained. Some training programs are conducted to satisfy the statistics of the Department. They never engage qualified competent persons to train this very responsible officers. There is no induction training for them. This also creates a lot of problem. According to the Act the decision of the majority of the members will prevail. If the members are not properly there every chances of taking wrong decisions. The Metropolitan Magistrate who is the chairman of the Board has only the power to preside and to sign in the orders. He cannot supersede the decisions of the majority. So a well trained, qualified,and judicious Board should exercise the powers with a clear vision.

The CWC members are also not given the proper training that they require. The position they hold is equated to that of 'bench of magistrates'. But the magisterial or administrative training is not given this body to work with cohesion and to uphold the interests of the children. I had the occasions to hear the hue and cry of some of the members in meetings, to increase the monetary benefits and allowances for them rather than of the protection of child rights. This position is treated as a vocation and not as a service by many of them.The CWC should be made as a voluntary body with commitment and they should be thoroughly trained to enforce the provisions of the Act.

As far as the Adoption centers are concerned, they are also not free from corrupt practices. The motive of many of the centers are making money in the disguise of saving the children. Just a business and pretend that they are saviours.There are a few centers who are service oriented and really work for the benefit of the children.The general revenue is is being taken away by these corruption centers by way of aids etc.There is no provisions in the Act to check this.

Now this is the right time to put a question to ourselves that whether the act and the bodies constituted under the act really address the issues of the needy children? Whether the bodies are properly empowered and equipped? Whether our mindset is child friendly?

The best interest of the child - that should be the primary goal. Every child should be brought up happily and correctly. Whether we have achieved this? Or are we towards this path?

The Right to Information Act, 2005.

‘No man is good enough to govern another man without that other’s consent.’ Abraham Lincoln.

 

The Right to Information Act, 2005 is a part of fundamental rights under Article 19(1) of the Constitution, which says that every citizen has freedom of speech and expression. The people cannot express themselves unless they know what’s happening in the systems that govern them. We were governed by a very old law namely ‘Official Secrets Act’ which says that everything with the government should be confidential. This Act existed in India till the passing of the RTI Act in year 2005. “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed” says the preamble of the Act.

But it is quite unfortunate that the Government authorities are still hesitant to part with the information under their control. The officials as well as the political administrators see this progressive legislation as a spot in their eye and they are slowly trying to bring out amendments weaken the legislation. As stated in the preamble, the Act envisages a transparent governance. The Act covers not only the Executive, but the judiciary and the legislature also. It extends to all central, state and local government systems including those bodies owned, controlled or substantially financed by government and also those Non-government organizations substantially financed, directly or indirectly by funds provided by government. Information relating to any private body that can be accessed by a public authority also comes under the ambit of RTI Act, 2005. So the entire system is against the Act. The appeal case against the orders that the Act applies to Supreme Court is a matter of discussion.

Section 4(2) of the Act says that “it shall be the constant endeavor of every public authority to provide as much information suo motu to the public at regular intervals through various means of communication, including internet, so that the public shall have minimum resort to the use of this Act to obtain information“. The aim is the change of mindset from maintenance of Official Information in Secret to Maximum Voluntary disclosure of information. The public authority means all the above institutions.

The RTI Act defines “Information” as any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, and data material held in any electronic form. “Right to Information” also covers Inspection of work, documents, records; taking notes, extracts, or certified copies of documents or records; and taking certified samples of material. It implies that any citizen can exercise his right to even insist that a particular civil work be performed in his presence.

Every Public Authority shall designate as many Public Information Officers (PIO) in all the administrative units or Offices under it as may be necessary to provide information to persons requesting information”. PIO is also required to help any person making the request orally to reduce the same in writing. The Act further stipulates that “every public authority shall designate an Officer at each sub-divisional or other sub-district level as Assistant Public Information Officer (APIO) to receive the applications for information or appeals under this RTI Act for forwarding the same forthwith( within five days) to the respective PIO or 1st Appellate Authority or Information Commission. The Burden of proving that PIO/APIO has acted reasonably and diligently in discharge of his functions or obligations under RTI Act will be on the respective PIO/APIOPIO may seek assistance of any other Officer as he or she considers it necessary for the proper discharge of his or her duties. Section 5(5) of RTI Act says that such Officer will be deemed as PIO for the purposes of providing the information requested. The Burden including liability for Penalty on defiance of information will stand transferred to the Deemed PIO. This particular clause indicates the joint responsibility to be kept by each Public Authority.

The Request for information has to be submitted to PIO or APIO in writing or through electronic means in English, Hindi or local language of the area with a Fee of Rs. 10/-. (There is no fee for persons Below Poverty Line). PIO can demand additional sum of Rs. 2 for each page created or copied for giving it as information to the requester or Rs. 50/- per diskette/floppy if the same is given in electronic form. Incase if Inspection of work is requested no fee is chargeable for the first hour, but Rs. 5/- each for every subsequent hours. This fee is also exempted for the persons of BPL group. Section 6(2) of RTI Act makes it clear that a person requesting information shall not be required to give any reason for requesting the information or any other personal details.

The Act mandates that the PIO shall provide the requested information as expeditiously as possible, but in no way later than 30 days. However the public authorities can take 5 days more to part with the information sought, if such request is made through APIO. But in any case where the requested information involves the question of “life or liberty”, such information should be given within 48 hours. Where the information relates to a “third party” as defined under the Act, the maximum time is forty days. However the act again says that non furnishing within the above stipulated period shall be deemed as refusal.

Though the Right to Information Act aims at complete transparency in the governmental system, it is also equally important that the strategic information pertaining to the State and any personal information devoid of larger public interest be exempted from disclosure. Accordingly Section 8 (1) of the RTI Act bars the disclosure of the following information.

a)      Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offense;

b)      Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

c)       Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

d)      Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, (unless larger public interest warrants the disclosure of such information);

e)      Information available to a person in his fiduciary relationship, (unless the larger public interest warrants the disclosure of such information);

f)        Information received in confidence from foreign Government;

g)      Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

h)      Information which would impede the process of investigation or apprehension or prosecution of offenders;

i)        Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. (However, after the decision is taken and the matter is complete or over, the decision, the reasons thereof and the material leading to the decision shall be made public);

j) Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless larger public interest demands its disclosure

Further, Section 9 of the Act insists that any information that infringes the copyright of any person other than the State should not be disclosed.

The third party should be heard before any information pertaining him is given. He has a right to appeal against the decisions of the PIO.

This Act is very brief that it contains only thirty plus sections and two schedules. But this can be termed as the most powerful and self contained Act that the Independent India has brought out.

Even though five years have elapsed after passing the Act, we are facing a lot of challenges in the implementation. Few are narrated below for discussion and for our vigilance.

1. The real information stake holders-the deprived masses are not educated and they are more concerned in their basic fight for survival than how the benefits of RTI Act can be made to reach them.

2. Appointment of information commissioners-persons with impeccable integrity should be appointed. It is difficult for a bureaucrat who has guarded information till now to cope up with the new requirement overnight.If the appointment of the commissioner is not made properly the very spirit of the act will be defeated. In Kerala the Government appointed an active office bearer of a Ruling political party as the State Information Commission.

3. Attitude of authorities and personnel in public life has not changed.

4. The citizens are not well trained to use this powerful weapon in the proper way. No serious efforts are being taken by the governments to educate the citizens. Now there are so many unnecessary and silly applications made by ill educated. By projecting these applications, the government the legislature,judiciary and the executive are making attempts to make amendments in the Act.

It is the duty of all the responsible citizens to be vigilant against such attempts.