The decision is a curious combination of judicial activism and self restraint. Prof Upendra Baxi in a recent editorial notes what the decision failed to do, namely recognize the right to adoption as an integral part of the right to life in Article 21. Prof Baxi castigates this incongruous judicial self restraint and failiure to meet obligations under the UN Convention on the Rights of a Child by asking “How long will Indian Muslim children have to wait till they can rightfully be adopted by other pious Muslims”?. However, as he himself notes, the court while rejecting calls for an UCC also doesn’t heed the arguments made by the All India Muslim Personal Law Board. Baxi argues for a more determined robust engagement with “social action litigation” rather than the more cautious managerialist approach it seems to be adopting.
The Supreme Court of India in its recent decision in the Shabnam Hashmi case took another step towards the harmonization of family law in India by holding Muslims too could adopt under the Juvenile Justice Act. The decision was clearly a product of very cleverly crafted legal strategy which would allow adoption by Muslims and Christians, without raising the UCC debate. The decision has been celebrated for recognizing rights of both parents and children.
