Calcutta High Court: In a writ petition revolving around the petitioner’s quest to know his biological roots, challenged by the non-availability of essential adoption documents, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., dismissed the writ petition, stating that while the petitioner has a right to search for his biological parents, the right of privacy of his mother takes precedence. The Court also held that there is no legal obligation on the adoption agency to retain documents for an extended period, and the petitioner’s delay in seeking information affects the remedy sought.
“…as against the right to know one’s roots, the rights of privacy and protection of identity of the biological parents of an adoptee are more fundamental and basic insofar as the said right protects the very survival of the biological parents.”
Factual Matrix
In the instant matter, the petitioner is a Swiss citizen who was adopted from India by Swiss parents in 1988. Upon reaching adulthood, the petitioner initiated a search for his biological roots. Allegedly, attempts to obtain information from the Specialized Adoption Agency/respondent 5 were met with resistance, raising concerns about the validity of the adoption process. The petitioner, through his attorney, filed a writ petition seeking the production of essential adoption documents
Moot Point
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Whether the petitioner has a right — legal or constitutional — to search out the particulars of his biological parents/mother?
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If so, whether the said right prevails over the right to privacy of the petitioner’s biological mother.
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Whether the respondents or any of them had any legal obligation to preserve the records relating to the relinquishment of the petitioner, in particular the relinquishment deed (Deed of Surrender) executed by his biological mother?
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If so, what remedy is available to the petitioner to enforce the same.
Petitioner’s Contentions
The petitioner argued that the specialized adoption agency had a duty, as per Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244, to preserve adoption records, including the relinquishment deed. However, the agency now claims not to possess essential documents for the adoption. It was contended that there is a dispute between specialized adoption agency and scrutinizing agency/respondent 6 regarding custody of the scrutiny report and relinquishment deed, casting doubt on the legality of the adoption. The petitioner demanded the production of the relinquishment deed, and in its absence, seeks legal action, including criminal proceedings, against the respondents for potential vitiation of the adoption process.
While citing Regulations from 2022, the petitioner emphasised that the right of an adopted child should not infringe on the privacy rights of biological parents unless they specifically requested anonymity. The petitioner relied on ABC v. State (NCT of Delhi), (2015) 10 SCC 1, to argue that the child’s rights are paramount and that the right to know one’s identity should not be compromised and cited Maria Chaya Schupp v. Director General of Police, 2009 SCC OnLine Kar 477, to support the broader right to ascertain and preserve one’s identity. The petitioner argued that the right to privacy must be balanced against the fundamental right to identity, citing K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
The petitioner referenced Articles 4, 16 and 30 of the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption of 1993 are recognizing the right to identity. The petitioner also invoked the United Nations Convention on the Rights of the Child, 1989 asserting the State’s duty to remove obstacles preventing individuals from tracing their genetic origins.
The petitioner asserted the maintainability of the writ petition through the Special Power of Attorney holder, referring to the Indian Evidence Act and a Bombay High Court case for validation.
Respondent’s Contentions
Respondent 5 argued that Lakshmi Kant Pandey (Supra) was focused on child trafficking, not the present case, and claimed compliance with guidelines. It was contended that respondent 5 cooperated by responding to emails and directing the petitioner’s attorney to search for documents in Alipore Court. It was contended that the records indicate that the adoption process, including the relinquishment deed, was conducted in accordance with established norms and procedures. It was contended that the law mandating record maintenance came into effect in 2017 and does not apply retrospectively, absolving the agency of responsibility for records before that date.
The respondent emphasised on the privacy rights, particularly of an unmarried mother, arguing against the petitioner’s demand for information may infringe on these rights and lacked a legal right to the information sought. The respondent emphasised on Regulation 47(6) preserving the privacy rights of the biological mother, which outweighs the petitioner’s right to identity and stated the classification of unmarried mothers as a separate category in Adoption Regulations, 2017 and 2022, excluding them from the scope of root search.
Court’s Assessment
The Court stated considered the relevant provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Adoption Regulations of 2022, which provide for root search procedures. The Court emphasised the importance 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 is a need to balance the adoptee’s right and the biological parents’ right to privacy. The Court opined that the right to root search is implicit in the right to life as enshrined in Article 21 of the Constitution of India, applicable to foreign nationals as well.
“The right to know one’s roots is definitely implicit in one’s existence as a human being. Quest and curiosity are the primary premises of human evolution and progress. At the level of the individual, the same translates to leading a life worth the name.”
The Court recognised the right to root search as implicit in the right of the petitioner to know himself and lead a life of dignity, constituting a part of the right to life under Article 21 of the Constitution of India. The Court also acknowledged the confidentiality requirements under Regulation 48 and emphasised the importance of protecting the rights of unwed biological mothers who surrender their children due to social pressures.
“…when an unwed mother surrenders her child due to extreme social pressures. Subjecting the said mother to potential social ignominy and ostracization might hit at the very root of her survival and may even lead her to take an extreme measure.”
The Court distinguished the present case from precedents involving conflicting fundamental rights, asserting that the present case involves the interplay within different aspects of Article 21. The Court discussed the right to privacy as established in the K.S. Puttaswamy (Supra) and highlighted the delicate balance needed between the right to know one’s roots and the fundamental rights of privacy and protection of identity for biological parents. The Court addressed the petitioner’s reliance on judgments from other high courts and emphasizes the discretion of the court in disclosing information, even through a constituted attorney, based on individual circumstances.
“…the right to privacy and confidentiality of the unwed biological mother who surrendered her child has to be given primacy over the right of the adoptee, which is more on the fringes of his human existence and survival inasmuch as the said right is an add-on to his existence, which is otherwise well-sheltered and protected in the hands of his Swiss adoptive parents with whom he has grown up during all of his 35-36 years of existence on earth.”
The Court held that the petitioner has a legal and constitutional right to search for his biological parents, subject to the right to privacy of his biological mother. The Court opined that the right to privacy and confidentiality of the unwed biological mother prevails over the petitioner’s right to access information about his roots.
“Hence, seen from every perspective, although the petitioner has a legal and constitutional right to search out the particulars of his biological parents, the right of privacy of his mother prevails over the petitioner’s said right.”
Regarding the obligation to preserve records, the court considered the lack of a strict legal obligation on the adoption agency to retain such documents for an extended period and dismissed the petition.
“In the absence of any strict legal obligation on the adoption agency to retain such surrender deed, particularly for so long, no penal action or direction can be passed against the respondent no. 5 with regard to the admitted absence of the document with it… Hence, the remedy sought in the present writ petition cannot be granted, particularly in view of the delay of almost two decades by the petitioner to come up with the present search after attaining majority.”
Court’s Decision
The Court dismissed the writ petition and petitioner’s claim for a remedy, citing the delay in initiating the search after attaining majority and the absence of a strict legal obligation on the adoption agency to retain certain documents.
[Fabian Ricklin v. State of W.B., 2024 SCC OnLine Cal 103, order dated 05-01-2024]
*Judgment by Justice Sabyasachi Bhattacharyya
Advocates who appeared in this case:
Ms. Jhuma Sen, Ms. Trisha Saha, Ms. Arpita De, Mr. Dinesh Vishwakarma, Counsel for the Petitioner
Mr. Pranit Bag, Mr. Sourav Chunder, Ms. Mandabi Choudhury, Counsel for the Respondent 5
Mr. Rahul Karmakar, Mr. Sounak Mukherjee, Counsel for the Respondent 6
Mr. Biswabrata Basu Mallick, Ms. Parna Roy Choudhury, Counsel for the Respondent 7
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Excellent reporting