In the 2020 Insamer report, it is estimated that there are about 31 million children in India who are deprived of family-based care. These children include those who are orphaned, abandoned or trafficked, and also children whose families could not provide care for them. However, according to the Central Adoption Regulation Authority (CARA), about 500,000 children are provided care in child-care institutions across the country and only about 3,500 children, on average, are supported in family-based care systems every year. The reason behind the slow rate of deinstitutionalisation is multifold – including attitudes among the prospective adoptive or foster parents to opt for children based on cultural or religious considerations.

India is home to a culturally and religiously diverse population. However, families while providing alternative care tend to choose children who are ethnically, religiously, and culturally aligned with themselves. When the family lineage is unknown, the probability of the children being adopted or offered alternative care is quite low. The system of caste has been in existence for centuries and a caste is considered to be attained at birth based on the caste of the parents. Though India has come a long way in social development, caste-based interactions still happen, both in rural as well as urban areas. This incessant social evil still plays a major role when families choose to adopt or provide alternative care, despite there being laws condemning discrimination.

For the full and harmonious development, both the United Nations Convention on the Rights of the Child (UNCRC) as well as the United Nations Guidelines for the Alternative Care emphasise the growth of children in a family-based environment. According to Article 20 of the UNCRC, a child who is temporarily or permanently deprived of his/her family environment must be provided with special protection and assistance. There is also a mandatory obligation on the part of the State to ensure alternative care based on the domestic laws, giving due regard to a ‘child’s ethnic, religious, cultural and linguistic background’. The question here is whether there must be cultural or religious considerations in providing such alternative care in a diverse country like India.

When a child is placed in the family based on their socio-cultural milieu, it does play a huge role in helping children to cope and adapt to the new family and it would also be a step forward in preserving his/her identity and respecting his/her culture. In India, the primary law governing alternative care is The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015). In providing alternative care to children, neither the JJ Act, 2015 nor the Juvenile Justice (Care and protection) Model Rules, 2016 provide any reference to culture or religion. This is for a reason.

In India, placing importance on the socio-cultural milieu while providing family-based care would further exacerbate the problem of the caste system and stratification. India is predominantly a Hindu society and is stratified based on caste. Though the religion is the same, the cultural practices of the population differ based on their caste. Statistics indicate that one of the primary reasons for the high number of orphaned and abandoned children in India is due to social inequality and poverty that ultimately stem from the caste system. It can also be interpreted that most of the children who are deprived of their family environment are Dalits (those considered to be from lower castes) and/or who are from a poor economic background. In this scenario, placing the child in a family based on their cultural or religious background would be harmful. This is because, on the one hand, this would lead to further stratification and, on the other hand, children belonging to the lower caste would be denied any family-based care; in the worst case, they may forever remain unadoptable. This is against the principle of non-discrimination provided in Article 2 of the UNCRC and Article 14 of the Indian Constitution.

In family-based alternative care, placing children in a family based on culture or religious background poses a huge risk of stratification in culturally heterogeneous and diverse countries like India. Instead, there must be a promotion of culture where family-based alternative care is promoted for all children equally and such children must be allowed to practise their respective religion and culture. In this way, not only the right to identity, but also the right to religion and culture of children is promoted. The children are ensured a family-based environment as well.

As per the CARA data, more than 26,000 prospective adoptive parents were registered in CARA for in-country adoption and about 1,200 parents for inter-country adoption. Thus, it can be inferred that adoption demand in India is quite high. There is a need for prospective parents to look beyond their culture or religion and be open in providing family-based care for children. The Supreme Court of India, in the landmark case of M/s Shabnam Hashmi v. Union of India & Ors, has also emphasised the same. It held that any person is free to adopt children irrespective of religion or caste under the JJ Act, 2015. Although this is a huge leap forward for India in developing alternative care, there is still a long way to go in building a robust alternative care system. For example, when it comes to foster care, there is a lack of awareness among people about the system and a certain level of reluctance in accepting it. Therefore, it is important that the State creates more awareness and a positive environment, and reduces the taboo in providing family-based care for children who are deprived of their family.

The journey of these children from being deprived of a family environment to being placed in family care is long and tedious. The situation is worsened by the emphasis on culture or religion by prospective families. This should not be the case. The State must ensure the abrogation of such discrimination.