Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Suo Moto v. State of Kerala has held that the right to privacy of adopted children cannot be violated at any stage of their growth regardless of whether they were born to rape survivors.

• The High Court further laid down the guidelines for the collection of DNA samples from children who were born to rape survivors and were subsequently adopted by other couples.

What was the Background of Suo Moto v. State of Kerala Case?

• Before the Kerala High Court, a criminal miscellaneous case has been registered Suo Motu based on the report of the Project Co-ordinator, Victims Rights Centre, the Kerala State Legal Services Authority.
• The report of the Project Co-ordinator points to the glaring conflicts of law relating to a sensitive and vulnerable issue touching the privacy of the children given in adoption.
• The report pointed out that the court orders to collect the DNA of children born to rape survivors were in conflict with Regulation 48 of the Adoption Regulations, 2022 issued in exercise of the powers conferred under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
• Thereafter, the High Court issued guidelines for the collection of DNA samples from children who were born to rape survivors.

What were the Court’s Observations?

• Justice K Babu observed that in some cases, adopted parents would not have even divulged the fact of adoption to the child. The child would have blended so well with the adopted family that a sudden revelation that he/she is an adopted child and that too of a rape victim can imbalance his/her emotional status and can result in them exhibiting behavioral disorders and aberrations. This exercise of subjecting the child to DNA test will only defeat the purpose of the divine concept of adoption.
• It was further observed that the provisions dealing with rape in the Indian Penal Code, 1860 (IPC) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) do not demand that the paternity of children born to rape survivors be proved to establish the offence.

Guidelines Issued by the Court

• The Court issued the following guidelines for the collection of DNA samples from children who were born to rape survivors and were subsequently adopted by other couples:
  • Courts shall not entertain applications seeking DNA examination of children given in adoption.
  • The Child Welfare Committee shall see that the DNA samples of children given in adoption are taken before the completion of the process of adoption.
  • All agencies or authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.
  • Even in cases where the children were not given in adoption the Court shall consider the request for a DNA test of the children of the victim only after assessing the principle of eminent need and doctrine of proportionality.

What are the Relevant Legal Provisions Involved in it?

Regulation 48 of the Adoption Regulations, 2022

• This regulation deals with the confidentiality of adoption records.
• It states that all agencies or authorities involved in the adoption process shall ensure that confidentiality of adoption records is maintained, except as permitted under any other law for the time being in force and for such purpose, the adoption order may not be displayed on any public portal.

JJ Act

• The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on 15^th January 2016.
• It repealed the Juvenile Justice (Care and Protection of Children) Act, 2000.
• This Act seeks to achieve the objectives of the United Nations Convention on the Rights of Children as ratified by India on December 11, 1992.
• It specifies 58+rocedural safeguards in cases of children in conflict with law.
• It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc.
• The Act further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years
• According to Juvenile Justice (Care and Protection) Amendment Act, 2021, crimes against children which are mentioned in the chapter “Other Offences Against Children” of the JJ Act, 2015 and that allows imprisonment between three and seven years will be deemed “non-cognizable”.
• As per Section 2(35) of this Act, juvenile means a child below the age of eighteen years.