SHABNAM HASHMI V/S UNION OF INDIA; INDIAN SECULARISM

REJUVENATED
Nishith Upadhyay

ABSTRACT

In the present commentary the author has endeavored to analyze the case of Shabnam Hashmi v Union
of India. The case judgment has turned out to be a great piece of law in the context of Muslim adoption. It
has provided for the first time the right to adopt a child under the JJ Act, 2000 transcending the personals
laws of Muslims.

The commentary includes an introduction to the facts of the case, the issue involved, the arguments from
both sides and the court’s judgment. It further includes the detailed analysis of the judgment and the
conclusion with regards to the impact of the judgment.

The commentary discourses the right of an individual to adopt or be adopted under the JJ Act, 2000
irrespective of caste, religion or creed etc. It also explains the secular nature of the JJ Act, 2000. It
concludes with the appreciation of the judgment rendered by the Apex Court which makes adoption under
JJ Act, 2000 secular. Thus, rejuvenating the principle of secularism enshrined in the Indian constitution.
The commentary is an effort to analyze the judgment rendered by the Apex Court and to elucidate the
judgment for the clarity of the law in the context of Muslim adoption.

INTRODUCTION

India is a diverse country and we feel proud in our diversity. One of the aspects of this diversification is
“religion”. We are diverse in terms of religion too and every religion has its own set of laws governing the
follower’s personal rights including marriage, adoption, succession, inheritance among others.

Under the Muslim law, adoption is not allowed. However, under the JJ Act, 2000 adoption by an Indian is
allowed. Now the dispute arises that whether to follow the religious laws or to follow an enabling law
which is secular in nature.

Logic and reasonability dictates that the latter must be followed. However, the religious laws transcending
all such logic and reasons dictate that it should not be done.

The inherent conflict starts here. The religion has the might of its followers whereas the Apex Court has
the dictate of the law. In our constitutional scheme a just law has precedence over arbitrary religious
practices and therefore, in the present judgement the Apex Court has used this power of precedence to
do overall justice and ensure that arbitrary and unreasonable practices do not undermine the rule of law.

I. CASE AT HAND


5th year student, University of Petroleum and Energy Studies, Dehradun (UK)
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In the present case a writ petition was filed by the petitioner praying for either of the two reliefs. The first
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one being declaration of right to adopt and be adopted as a fundamental right under article 21 of the
constitution of India and second one being the issuance of guidelines enabling adoption of children by
persons irrespective of religion, caste, creed etc. It was further prayed that a direction to the respondent
i.e. Union of India, be issued to enact an optional law the prime focus of which should be the rights of the
child with considerations like religion etc. kept aside.

II. ISSUE AND ANALYSIS

The present issue at hand is that whether personal laws of any religion can dictate the operations of an
enabling statute?

The Supreme Court has enlightened us with the various provisions of law relating to adoption under the
Juvenile Justice (Care and Protection of Children) Act, 2000, the Juvenile Justice (Care and Protection of
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Children) Rules 2007, the CARA guidelines which are recognized as authoritative under Section 41(3) of
the JJ act, 2000.

In the light of these enactments the petitioner argued that JJ Act, 2000 is a secular law enabling any
person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special
Marriage Act 1954, which enables any person living in India to get married under that Act, irrespective of
the religion he follows. It was further submitted that JJ Act, 2000 with regard to adoption is an enabling
optional gender-just law.
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The respondent All India Muslim Personal Law Board contended that the “Kafala” system which is
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recognized by the United Nation’s Convention of the Rights of the Child under Article 20(3) is one of the
alternate system of child care contemplated by the JJ Act, 2000 and therefore a direction should be
issued to all the Child Welfare Committees under JJ Act,2000 to keep in mind and follow the principles of
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Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the JJ Act,
2000.

III. JUDGMENT

The court observed that personal beliefs and faiths, though must be honored, cannot dictate the
operation of the provisions of an enabling statute. It was further stated that an optional legislation that
does not contain an unavoidable imperative cannot be rendered nugatory by principles of personal law
which, however, would always continue to govern any person who chooses to submit himself to it.

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Shabnam Hashmi v UOI writ petition (Civil) NO. 470 of 2005 on 19/02/2014.
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No person shall be deprived of his life and personal liberty except according to the procedure established by law.
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(3) In keeping with the provisions of the various guidelines for adoption issued from time to time by the State Government, the
Board shall be empowered to give children in adoption and carry out such investigations as are required for giving children in
adoption in accordance with the guidelines issued by the State Government from time to time in this regard.
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Kafala: partial or consensual adoption, bestowing a gift, or taking charge of.
Quran (Surat Al Imran,3:36)
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Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption or if necessary placement in suitable
institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's
upbringing and to the child's ethnic, religious, cultural and linguistic background.
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Section 4(5) of JJ Act,2000: No child shall be offered for adoption-
a. Until two members of the Committee declare the child legally free for placement in the case of abandoned children.
b. Till the two months period for reconsideration by the parent is over in the case of surrendered children.
c. Without his consent in the case of a child who can understand and express his consent.
The court also in obiter said that the alternative prayer to declare the right to adopt and be adopted as a
fundamental right under article 21 must be done by the legislature because it is better equipped to
comprehend the mental preparedness of the entire citizenry to think united on the issue.

Therefore the court did not declare the right to adopt or be adopted as a fundamental right under article
21. However, it clearly settled the position that adoption under the JJ Act, 2000 (an enabling legislation)
can be done irrespective of caste, creed or religion etc. The court also reiterated its hope of enactment of
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the Uniform civil code under article 44 of the constitution.

IV. REJUVENATION OF THE INDIAN SECULARISM

Clearly, the principle of positive secularism enshrined in our preamble has been rejuvenated by the Apex
Court in such times where we stand divided more than ever. Indian Secularism enshrines the concept of
equal respect for all religion; however, it also contemplates that part III of the constitution would definitely
prevail over the religious rights. This can be clearly seen in the judgement of Daniel Latifi vs. Union of
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India , where the Apex Court ensured that a Muslim woman is paid for her subsistence even after the
iddat period, contrary to the Muslim law. However, the Apex Court did not declare the right to adopt to be
a fundamental right, thus, restraining itself from making judicial law making and left it to the legislature to
do so. A balanced judgement is what the Ape court has given us and it has the effect of bringing back to
life the dormant secularism part of our preamble and the overall constitutional scheme.

V. CONCLUSION

The Supreme Court by this judgment has once again proved that it is the true guardian, interpreter and
enforcer of the philosophy of the Indian constitution. It has firmly established the principle of secularism
as enshrined in the soul of our constitution through this judgment. The remarks of the apex court on the
constant evolution and change in the notion of fundamental rights is absolutely correct. With respect to
article 44 the Apex court has once again only opined that there is a need for a uniform civil code in India
but failed to provide any authoritative direction for its effective enactment. The present judgment can be
considered a corner stone for the edifice of uniform civil code. The response to this judgment by the
communities would lead to the answer whether our country with huge diversity is ready for uniform civil
laws or not.

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The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.
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Writ Petition (civil) 868 of 1986