Author Details:-

Ankur Vaibhav Gautam
2 year LLB, Delhi University

In the writ petition revolving around the applicant’s hunt to know his natural roots challenged by the non availability of essential relinquishment documents a single judge bench of Justice Sabyasachi Bhattacharyya dismissed the writ petition stating that the right of a natural parent would prevail over the right of the child to conduct a root hunt to trace his origins.

The Case Background:

The applicant is a Swiss citizen. He was adopted from India by his Swiss parents in 1988. The applicant alleges that after coming of age, he commenced a hunt for his roots. The applicant approached the Calcutta High Court through a writ petition in which he’s requesting access to the handover deed executed by the relinquishment agency that had eased the relinquishment in 1988.

The applicant’s natural mother, an unattached woman, had given him up for relinquishment and that she did n’t wish to maintain any connection with the child, and she went untraceable shortly after the relinquishment process by the Swiss parents. Despite the applicant’s plea the High Court dismissed the case.

Issue Presented in the case:

The court after analysing the data of the case and the contentions of both the parties considered the following four major issues involved in the present case.

1. Whether the applicant has a right legal or constitutional to search out the particulars of his natural parents ?
2. Whether the said right prevails over the right to privacy of the applicant’s biological mother ?
3. If so, Whether the respondent or any of them had any legal obligation to save the records relating to the handover of the applicant, in particular the handover deed( Deed of Surrender) executed by his natural mother ?
4. What remedy is available to the applicant to apply the same ?

Court’s Observation:

Justice Sabyasachi Bhattacharya of the single bench observed the answer to the above questions are connected and so all the issues are taken uo together for adjudication. There are two distinct time frames involved in the present case. The applicant was born in 1987 and was relinquished in 1988. On the other hand, the present writ petition has been filed to help the applicant in the spoilage hunt regarding his natural parents. It was filed in 2023, that is, about 35 years after the relinquishment. Therefore, the law applicable at the time of the applicant relinquishment and on present day that are governing the root hunt process are kind of different.

The court observed that the right to privacy of a natural parent, particularly an unattached mother who had given up her child for relinquishment and later faded, would take over the child’s right to trace his or her natural origins. The court further noted that the Section 47 of the Adoption Regulations, 2022, explicitly states that an espoused child’s rights should not infringe upon the natural parent’s right to privacy. It was further added that the right to know one’s roots is surely implicit in one’s actuality as a mortal being. At the position of the existent, the same translates to leading a life worth the name. Still the court concluded that the rights to privacy and identity protection of an adoptee’s natural parent is more aberrant as these rights safeguards the natural parents’ veritable survival.

Applicable Legal provisions:

The court considered the applicable vittles of the Juvenile Justice( Care and Protection of Children) Act, 2015 and the Adoption Regulations of 2022 which give for root hunt procedures. The court emphasised the significance of the right to know one’s identity as implicit in the right to life under Article 21 of the Constitution of India and stated that there’s a need to balance the adoptee’s right and the natural parents’ right to privacy.

Right to privacy: regarded as one of the most pivotal mortal rights in the contemporary day. Right to sequestration is defended as a natural part of the right to life and particular liberty under Article 21 of the Constitution of India, 1950. The right to privacy is an element of colourful legal traditions that intends to restrain governmental and private conduct that hang the sequestration of an existent. The sequestration presuppositions the reservation of a private space for the existent, described as the right to be let alone. The concept is innovated on the autonomy of existence. The court editorialised that the right to bed hunt is implicit in the right to life as elevated in Article 21, applicable to foreign citizens as well.

In K.S. Puttaswamy v. Union of India( 2017), the Supreme Court held that privacy constitutes the foundation of all liberty because it’s in sequestration that the existence is inextricably linked in a pattern woven out of a thread of diversity into the fabric of plural culture. The Court addressed the applicant’s reliance on judgments from other high courts and emphasised the discretion of the court in telling information, indeed through a constituted attorney, grounded on individual circumstances.“the right to privacy and confidentiality of the unattached natural mother who surrendered her child has to be given supremacy over the right of the adoptee, which is more on the circumferences of his mortal actuality and survival is as much as the said right is an add- on to his actuality, which is else well- sheltered and defended in the hands of his Swiss consanguineous parents with whom he has grown up during all of his 35- 36 times of actuality on earth.” Right to privacy is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he or she makes.

Adoption Regulations, 2022: The ministry of Women and Child Development ok introduced the Adoption Regulation, 2022 to streamline the adoption process, Section 47 of this Regulation pertains to root search and stipulates the following:

1. 1. If the biological parents have specifically requested anonymity at the time of the child’s surrender, the Specialized Adoption Agency or the District Child Protection Unit, as the case may be, must obtain the biological parents’ written consent before divulging any information.
   2. In cases of root search by older adoptees, the concerned agencies or authorities, including the Authorised Foreign Adoption Agency, Central Authority, Indian diplomatic mission, Authority, State Adoption Resource Agency, District Child Protection Unit, or Specialized Adoption Agency, must facilitate the adoptee’s root search when contacted.
   3. Individuals above eighteen years can apply independently online, while children below eighteen years must apply jointly with their adoptive parents to the Authority seeking facilitation of root search.
   4. In cases where the biological parents deny the request or cannot be traced in surrendered cases, the reasons for such denial or non-traceability must be clearly stated.
   5. The regulations explicitly prohibit a third party from conducting a root search. The agencies or authorities involved are instructed not to disclose any information concerning the biological parents, adoptive parents, or the adopted child to the public.
   6. The regulations further emphasise that an adopted child’s rights should not infringe upon the biological parents’ right to privacy. This provision underscores the importance of maintaining the confidentiality of the biological parents, particularly in cases where they have chosen to remain anonymous.”

The most crucial part of Regulation 47 is sub clause (6) which clearly stipulates that the right of an adopted child shall not infringe the right to privacy of the biological mother. The court also concluded that the intention of the Legislature was to keep out the unmarried mothers from the scope and operation of root search.

Conclusion:

The case of Fabian Ricklins v State of West Bengal serves as one of the most significant and appropriate legal precedent for the adoption rights in India. The case briefly discussed the various past judgments of the Supreme Court and other High Court such as Laxmi Kant Pandey v Union of India (1984) which was the only precedent at the time when the relinquishment deed took place in the year 1988. The court analyses the word root search as it is new concept to India first time coined in the year 2015 in the Juvenile Justice Act, 2015. The court in the absence of any strict legal obligation against the adoption agency to retain such deed particularly for this long said no legal action or direction could be pass against them. None of the remedy in the present petition could be granted to the petitioner particularly in the view of delay of almost 2 decades by the applicant in coming up with the present search after attaining majority.

The court discussed the adoption rules in the detailed judgment regarding the root search process by the adoptee which prevail in India and the rights of the natural mother to hide her identity or to remain private it was concluded that the right to privacy of a mother will surpass any right of the son in search his biological origin. The case is the testament of the evolving nature of the privacy right in context to the adoption rules. This case will be referred to as one of the landmark judgement regarding the right to privacy and the rights of a man in hunt to find his biological roots.

End Notes:

[1] Article 21 of the Constitution of India, 1950

[2] Adoption Regulations, 2022

[3] SCC Online Judgement

[4] Juvenile Justice Act, 2015

[5] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

[6] Laxmi Kant Pandey v. Union of India (1984) 2 SCC 244