ADOPTION REGULATIONS, 2017

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Adoption Regulations, 2017 is framed by ‘Central Adoption Resource Authority’ (CARA) became effective from 16 January 2017. The Adoption Regulations find their basis in the Juvenile Justice (Care and Protection of Children) Act, 2015 which was notified on 4th January 2017. The new Adoption Regulations replace the Adoption Guidelines, 2015.

The Adoption Regulations have been framed keeping in mind the issues and challenges faced by CARA and other stakeholders including the Adoption Agencies and Prospective Adoptive Parents (PAPs). This change will streamline the adoption process. Transparency, early deinstitutionalisation of children, informed choice for the parents, ethical practices and strictly defined timelines in the adoption process are the salient aspects of the Adoption Regulations.

Some of the salient features of the Adoption Regulations, 2017 are:-

  1. Procedures related to adoption by relatives both within the country and abroad have been defined in the Regulations.
  2. Validity of Home Study Report has been increased from two to three years.
  3. The time period available to the domestic PAPs for matching and acceptance, after reserving the child referred, has been increased to twenty days from the existing fifteen days.
  4. District Child protection Unit (DCPU) shall maintain a panel of professionally qualified or trained social workers.
  5. There are 32 Schedules annexed to the Regulations including model adoption applications to be filed in the Court and this would considerably address delays prevalent in obtaining the Court order.
  6. CARA shall be facilitating all adoptions under the Juvenile Justice Act, 2015 through Child Adoption Resource Information & Guidance System (CARINGS) and all kinds of adoptions, including adoptions by relatives shall be reported to CARA which would enable safeguards for all adopted children by maintaining their record and ensuring post adoption follow up.

 

The Adoption Regulations proposes to streamline and bring transparency to the process of adoption which hither to was misused by some anti social elements for monetary consideration.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

 

 

MEMORANDUM OF PROCEDURE

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On December 16, 2015, a Constitution Bench of the Supreme Court, which had struck down the National Judicial Appointments Commission as unconstitutional, had left the task of preparing the Memorandum of Procedure (MoP) to the Central Government.

A year and three months later, the exercise has borne fruit after a long tug-of-war. The Supreme Court collegium has finalized the MoP for appointment of judges to Supreme Court and various High Courts.

After arriving at a consensus on Centre’s stand that “national security” ought to be part of the criteria to determine eligibility for appointment as judges, the collegium headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur has significantly dropped its reservation about setting up secretariats in the Supreme Court and each High Court to maintain databases on judges and assist the collegiums in the Supreme Court and the High Courts in selection of judges.

The collegium is of the view that the executive should have a veto on any candidate recommended by the collegium on the ground of “national security”, and that there should be an independent secretariat to deal with appointments and transfers.

Finalization of the MoP, which will be sent to the Centre for approval has raised hopes of speedy filling up of vacancies in High Courts, which are operating at below 60% of their sanctioned strength.

In many High Courts, court rooms have been shut because of lack of adequate number of judges. This is hampering disposal of cases, which adds to the backlog.

The members of the Supreme Court collegium held seven meetings and unanimously finalized the MoP after debating each clause and sentence of the new MoP. There were no other sore points except the national security clause and secretariat in the MoP that required resolution.

For the last one year, the draft of MoP was getting tossed back and forth between the Centre and the collegium with both sides refusing to budge over their stated positions on the national security clause which ostensibly gave veto power to the government to reject a name recommended by the collegium for appointment as judge. The collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded.

However, things started moving after Justice Khehar took over as CJI and the composition of the collegium changed, allowing it to meet the challenges on top of it.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

RIGHT OF PRIVATE DEFENSE IN CASE OF SUSPICION OF RAPE

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A fake message that has gone viral in the social media misinforms the public about the rights of a girl, suspected to be raped or getting raped. The message propagates that the law allows the victim to kill or harm the offendor, for which she will not be held guilty by virtue of Section 233 of the Indian Penal Code (IPC) 1860. The message that is being circulated is as follows and is being reproduced so that the public is not misinformed about its rights. The message reads as follows:

Finally a new law passed by *MODI JI Govt* today. As per _Indian Penal Code_ 233. If a girl is suspected to be raped or getting raped, then she has the supreme right to *kill* the man, or *harm* that person as dangerously and girl won’t be blamed for *murder*”

This article is written in the interest of general public and clarifies that no such new anti-rape law has been enacted by the Government of India. The IPC 1860 has already provided that a person may, in the exercise of his/her right of private defense, voluntarily cause death or any other harm to an offendor, who commits any of the offences listed under Section 100 IPC:

  1. assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
  2. assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
  3. assault with the intention of committing rape;
  4. assault with the intention of gratifying unnatural lust;
  5. assault with the intention of kidnapping or abduction;
  6. assault with the intention of wrongful confinement, which may reasonably cause the victim to apprehend that he/she will be unable to have recourse to the public authorities for his/her release.

The Supreme Court has held that in the case of private defense, the onus of proof shifts between the accused, to establish his plea of private defense and the prosecution, to establish every ingredient of the offence with which the accused has been charged, beyond reasonable doubt. It has also held that while judging the nature of apprehension which the accused can reasonably entertain in such circumstances requiring him to act on the spur of moment, the court has to take into consideration the subjective point of view of the accused and the normal course of human conduct as to how would a person react under such circumstances in a sudden manner with an instinct of self-preservation.

Daliparthy Harini

Legal Associate

EFFORTS OF THE GOVERNMENT TO ABOLISH ORDERLY SYSTEM IN THE INDIAN ARMY AND POLICE FORCE

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The Indian Government has been making efforts to abolish the system of orderlies also known as buddies, sahayaks and helpers in the Indian Armed Forces and the State Police Departments. They are trained uniformed people who are expected to help officers in maintenance and upkeep of uniform, answering telephone calls, attending to personal security and also run small errands. Over a period of time, low-ranking and combat soldiers and armed police constables have been made to work like orderlies and run errands for the officers and their families such as polishing of boots, ironing of clothes, cooking, washing of clothes, taking their children to school, shopping for their family members etc.

For a long period of time, the low-ranking soldiers and police constables have been demanding for abolish of this orderly system in the Indian Armed Forces and the State Police Departments. The Indian Air Force and the Indian Navy have already abolished this system and the Army Chief General Bipin Rawat has also lent his support to ending the sahayak or buddy system in peace zones because according to him, orderly system is important for the functioning of the Army during war and for deployment of forces in the field areas.

The Karnataka State Police Department, where over 3,000 constables and head constables work as orderlies for senior police officers, has also taken the bold move of abolishing this system through a formal Notification on 9th March 2017. It will introduce followers in place of orderlies. According to the said Notification, 50% of followers will be appointed for eligible officials and such officials will be extended home orderly allowance to engage followers of their choice on a part-time basis to assist them in disposal of official work at their residence. But in order to claim home orderly allowance, the officer will have to certify that he has utilized the allowance for the specified purpose and has not utilized the service of any police constable, government orderly, and peon at their residence as home orderly. This move will, probably, boost the morale of soldiers and constables to do their regular jobs.

GOVERNMENT TO FRAME RULES TO PREVENT FARMER SUICIDES

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The Supreme Court had, on 3rd March 2017, heard a public interest litigation (PIL) petition filed by an NGO, Citizens Resource and Action Initiative, to demand compensation for the families of the farmers who have committed suicide due to crop failure. The Supreme Court has expressed deep concern over the issue of farmer suicides and has directed the Centre to address the core issues which have caused the farmers to commit suicide.

The Court said that it is not possible for it to grant compensation every time a farmer commits suicide and moreover, payment of compensation to their families of such victims post-facto will not remedy this grave issue.  The Additional Solicitor General, P.S. Narsimha has claimed that the Government initiatives for the improvement of financial capacity of the farmers such as Crop Insurance Scheme, Soil Health Card Scheme, Pradhan Mantri Fasal Bima Yojna, Parampragat Krishi Vikas Yojana, etc will solve the problem. However, there may have been other reasons behind farmers committing suicide such as sociological issues, inability to repay loans to banks, etc. Therefore, the Court has directed the Government to prepare a roadmap and set up a comprehensive framework within three weeks to address the distress and misery caused to farmers in the farm sector and to prevent the incidents of farmer suicides instead of compensating their families later.