Introduction 

• This is a landmark judgment which talks about the fundamental right to adopt and the right to be adopted.   
• The Judgment was delivered by a 3-judge bench consisting of Justice Shiva Kirti Singh, Justice Ranjan Gogoi and Justice Markandey Katju. 

Facts   

• The petition was filed by Shabnam Hashmi under Article 32 of the Constitution of India, 1950 (COI) seeking recognition of the right to adopt and be adopted as a fundamental right under Part III of the Constitution. 
• Alternatively, the petitioner sought guidelines enabling adoption of children by persons irrespective of religion, caste, or creed. 
• The petition also requested a direction to the Union of India to enact an optional law focused primarily on the child's welfare, with religious considerations taking a secondary position. 
• The All India Muslim Personal Law Board intervened in the proceedings, arguing that Islamic law does not recognize adoption but follows the "Kafala" system, where a child is placed under a guardian who provides for their wellbeing. 

Issues Involved  

• Whether right to adopt and be adopted is a fundamental right under Part III of the Constitution? 

Observation 

• The Court held that the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act), as amended in 2006, provides a secular framework for adoption irrespective of religion. 
• The Court noted that the JJ Act is an enabling legislation that gives prospective parents the option to adopt an eligible child but does not mandate adoption. 
• The Court clarified that the Act does not interfere with personal laws as individuals are free to either adopt under the JJ Act or follow their personal laws. 
• The Court refused to declare the right to adopt or be adopted as a fundamental right under Article 21 of the Constitution of India, 1950 (COI). 
• The Court reasoned that elevating adoption to the status of a fundamental right would require a broader societal consensus, given the conflicting viewpoints among different communities. 
• The Court viewed the JJ Act as a step toward the goal of a Uniform Civil Code under Article 44 of the COI. 
• The Court emphasized judicial restraint, noting it should not deal with issues of constitutional interpretation unless absolutely necessary. 
• The Court noted that the decisions of the Bombay High Court In re: Manuel Theodore D'souza (2000) and the Kerala High Court in Philips Alfred Malvin v. YJ Gonsalvis & Ors. (1999) were specific to their facts and not broad precedents. 

Conclusion 

• The Court established in this case that right to adopt and be adopted is not a fundamental right.