“I am at a loss to understand how the activity of children helping their parents sell pens and other small articles would amount to child labour,” said Justice VG Varun of the Kerala High Court while ordering the release of two minor children from a shelter home.
The children, aged 7 and 6, were nabbed by the Kerala Police in November 2022 while they were selling articles in the Marine Drive area in Ernakulam.
The police alleged that they were being forced to do child labour and thereafter, the Child Welfare Committee (CWC), Cochin sent them to a shelter home.
The parents of the children, who are natives of Rajasthan and had migrated to Delhi, then moved the high court. They submitted that due to impecunious circumstances and inclement weather, they come to Kerala for a few months every year to eke a living by selling pens, chains, bangles, rings etc. and the children accompany them to sell their wares.
MATTER TAKEN UP IN DEC
Against the action of the police as well as the CWC, the parents filed a writ petition seeking direction for the children’s release in their custody.
When the matter was taken up on December 20, 2022, the court was apprised of the parents’ apprehension that the children would be sent to a Government Home in Delhi by the CWC Chairman. The court then passed an interim order directing the respondents not to transfer the children to any place outside Kerala.
On December 23, the court was informed that the parents of the children were not being allowed to talk to them. To this, the court again passed an interim order directing the authorities to permit the parents to interact with the children for one hour every day.
In pursuance of the court’s another order, the CWC Chairman filed a statement explaining the actions of the CWC.
The statement stated that the children were nabbed during a search operation and as the CWC found that they would come under the category of children in need of care and protection as stipulated in Section 2(14) (i)(ii) of the Juvenile Justice (Care and Protection of Children) Act 2015, it placed them under the care and protection of a shelter home.
It also stated that in an inquiry, it had been found that the petitioner parents and the children were permanent residents of South Delhi and were presently residing in a single-room dwelling in City Lodge in Iyyattu Junction in Ernakulam.
The officer had stated that, therefore, the CWC while opining that for children’s benefit and holistic development, they should live and grow in their own culture, decided to send them to CWC, District South East, New Delhi for rehabilitation.
‘TO BE POOR IS NOT A CRIME’
Justice Varun, however, observed that “no doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents”, but the police or the CWC cannot take the children into custody and keep them away from their parents. To be poor is not a crime, the judge said.
He further stressed that as per the principle of family responsibility, the primary responsibility of care, nurture and protection of the child is that of the biological family.
Opining that the holistic development of the children could not be attained by separating them from their biological family, the court directed for their release and quashed the order of CWC for their transfer to Delhi for rehabilitation.
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