Why Are CARA Guidelines Not Being Amended To Include Adoption By Transgender Persons? Madras High Court Asks Central Govt

The bench of Chief Justice Manindra Mohan Shrivastava and Justice G Arul Murugan directed the Union Government to explain why amendments had not been brought into the CARA Guidelines and the Juvenile Justice Act as per Section 8 of the Transgender Persons (Protection of Rights) Act 2019.

The court was hearing a petition filed by Shama challenging the provisions of the Hindu Adoption and Maintenance Act and the CARA guidelines framed under the Juvenile Justice (Care and Protection of Children) Act 2015 for discriminating against adoption by transgender persons.

The petitioner had argued that as per Section 8 of the Transgender Persons Act, the government had an obligation to take steps to secure full and effective participation of transgender persons and their inclusion in society. The government was also obligated to take welfare measures to protect the rights and interests of transgender persons, formulate schemes and programmes that are transgender sensitive and non-stigmatising and non-discriminatory.

The petitioner argued that after the enactment of the 2019 act, the word “male” and “female” provided under Rule 5 of CARA had to be read as including a “transgender” person to advance the object and purpose of the 2019 Act.

The petitioner further informed the court that presently, the proforma for applying on the CARA website does not allow or admit a transgender person to apply and seek adoption under the Juvenile Justice Act.

The bench wondered why CARA guidelines had not been amended or no guidelines had been issued for fulfilling the government's statutory obligation under the Act to include transgender. The court added that the Juvenile Justice Act, being a central legislation, and CARA being under the control of the Central Government, an explanation was necessary by the centre as to why such amendments had not been brought in yet

Interestingly, in October this year, a single judge of the Madras High Court had closed a plea for adoption by a transgender woman after noting that the statutory scheme did not allow the same. The single judge had directed the transgender woman to approach the Union Government asking them to amend Regulation 5 of CARA, enabling a transgender person to adopt from the CARA agency.

Counsel for Petitioner: Ms.Karthikaa Ashok

Counsel for Respondents: Mr.AR.L.Sundaresan, Additional Solicitor General Of India For Mr.R.K.Gandhi, Mr.A.Edwin Prabakar, State Government Pleader Assisted By Mr.T.K.Saravanan, Additional Government Pleader

Case Title: B Shama v. Union of India and Others

Case No: WP No. 4794 of 2024