1. Guardianship applications and child transfers abroad blocked by an omnibus government directive following trafficking investigations against unrelated organizations. (Para 2 )
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1999 Supreme(SC) 701
SUPREME COURT OF INDIA
INDIAN COUNCIL SOCIAL WELFARE
Vs.
State of Andhara Pradesh
Decided on July 14, 1999
Important Points
The court upheld the rights of petitioners with valid guardianship certificates to send children abroad and emphasized the importance of following the established adoption procedure.
Subject
Adoption - Inter-Country Adoption
Act Referred
Headnote
{'KEYWORD': 'GUARDIANSHIP', 'SUBJECT': 'Adoption of Indian Children', 'ACT SECTION LIST': ['CARA Guidelines, Chapter 3 para 3. 2.']}
Fact of the Case:
Four petitioners, recognized under CARA Guidelines for inter-country adoption, faced obstacles in processing guardianship applications and sending children abroad due to a government letter citing allegations of malpractices against other organizations.
Finding of the Court:
The court found no allegations of malpractices against the petitioners and noted the strict procedure for granting guardianship certificates, including scrutiny by various authorities.
Issues: Whether the petitioners could proceed with guardianship applications and send children abroad despite the government's directive.
Ratio Decidendi: The court held that children with guardianship certificates granted by appropriate courts could be sent to their foreign guardians and that pending applications should be processed. It emphasized the need for strict adherence to the adoption procedure and the importance of considering each case individually.
Final Decision: The court directed that children in the custody of the petitioners with guardianship certificates be allowed to go to their guardians and that pending applications be processed in accordance with the law.
Legal Category Hierarchy
Table of Contents
2. Petitioners contend that as they are not connected to the investigated organizations, their guardianship applications and child transfers should not be obstructed. (Para 2 , 4 )
3. The court noted the existence of a strict verification procedure for guardianship and the absence of malpractice allegations against the petitioners. (Para 3 , 5 )
4. Omnibus administrative directions cannot obstruct legal proceedings or rights of entities not implicated in the specific malpractices under investigation. (Para 4 , 8 )
5. Directed the processing of pending guardianship applications and the release of children to appointed guardians for the non-implicated organizations. (Para 6 )
6. Can an omnibus government directive stop guardianship proceedings for organizations not accused of malpractice?
No. In the absence of specific allegations of malpractice against an organization, there is no reason to prevent the processing of guardianship applications or the transfer of children to appointed guardians. (Para 4 , 8 )
7. What is the required procedure for granting guardianship certificates for inter-country adoption?
The process requires a letter of relinquishment, VGA clearance, a no-objection certificate from CARA, a home study of the proposed guardians, and approval from a scrutinizing agency in India. (Para 5 )
8. Does the state have the power to investigate child trafficking allegations against specific organizations?
Yes, the state government is entitled to investigate specific organizations or cases where allegations of malpractices are raised, provided such actions do not unfairly affect non-implicated parties. (Para 8 )
( 1 ) HEARD both sides.
( 2 ) IN view of the investigations regarding allegations of malpractices relating to trafficking in children raised against two organisations in the Stateof A. P. , the four petitioners before us who are not connected in any way with those organisations are being prevented from proceeding with applications for guardianship Filed by them before the Family court/district court in respect of specific children in their custody. The petitioners also contend that even in respect of those children in their custody where after scrutiny a guardianship certificate has been issued by the Family court/district court concerned the child in question is not being allowed to be sent abroad to the guardian so appointed. This is on account of a letter dated 6/4/1999 issued by the secretary, Department of Women development, Child Welfare and Disabled Welfare, government of Andhra pradesh.
( 3 ) THERE are no allegations of any malpractice against the four petitioners. Under the revised guidelines for adoption of Indian children issued by the Ministry of Welfare, government of India known as the central Adoption Resource Agency, CARA Guidelines, (Chapter 3 para 3. 2.) the state government is required tcies for in-country adoption as per the procedure laid down and is also required to forward applications of Indian Agencies seeking recognition for inter-country adoption to the central Adoption Resource agency after proper verification according to the criteria laid down in these guidelines. Accordingly, on the recommendations of the State government, the four petitioners who are before us have been listed with the Department of Women Development and Child Welfare, A. P. and have been recognised under the CARA Guidelines as follows:the certificate of recognition shows that it is valid for the State of ANDHRA PRADESH
( 4 ) THE petitioners are seeking a limited relief relating to those children whose applications for guardianship are pending either before the Family court or a District court in A. P. and those children in respect of whom, after proper scrutiny, guardianship certificates have already beenissued by the Family court or the District court concerned in Andhra pradesh. Because of the omnibus direction issued by the Women development, Child Welfare and Disabled Welfare Department of the government of A. P. , the applications are not being processed or the children are not being allowed to be sent to their appointed guardians outside India. In the absence of any allegations of any malpractices against the four petitioners we do not see any reason why those children in respect of whom guardianship certificates have already been issued by the appropriate court, cannot be sent to their foreign guardians. There is also no reason why pending applications of these petitioners cannot be processed or proceeded with.
( 5 ) IT is necessary to note that before a guardianship certificate is issued by the Family court or the District court concerned, a letter of relinquishment, VGA clearance, no-objection certificate from CARA and other relevant documents such as the home study of the proposed guardians, no-objection certificate from the agency which has scrutinised the application of the proposed foreign guardians, as also approval from the scrutinising agency in India who scrutinises these applications (in the case of the State of a. P. this scrutinising agency is the Indian council of Child welfare) are required. Thereafter the court decides whether the guardianship should be granted or not. In case there are any objections in respect of any proposed guardianship application, the same can be and are usually raised by the appropriate authority before the Family court/district court concerned.
( 6 ) IN view of this strict and adequate procedure, we direct that those children in the custody of the following four organisations who are the petitioners before us, namely, Indian council of Social Welfare, A. P. , John abraham Memorial
