'Children Helping Parents In Selling Articles Not Child Labour' : Kerala High Court Orders Release Of Children From Shelter Home

The Kerala High Court on Friday ordered the release of two children from Delhi who were sent to a shelter home alleging that they were being forced into child labour by selling articles on the streets to the custody of their parents. 

In November 2022, the two children were nabbed by the Police alleging that they were being forced into child labour by selling articles on the streets. The Children were thereafter produced before the Child Welfare Committee and sent to shelter home. 

The Writ Petition was filed for the parents of the children seeking direction to release the children to their custody.

Justice V G Arun while passing the order, observed that, 

I am at a loss to understand as to how the activity of the children in helping their parents in selling pens and other small articles would amount to child labour. No doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents...I wonder as to how the children can be provided proper education while their parents are leading a nomadic life. Even then, the police or the CWC cannot take the children into custody and keep them away from their parents.To be poor being not a crime and to quote the father of our nation, poverty is the worst form of violence.

The Chairperson of the Child Welfare Committee submitted before the Court in a statement that the police had found the two children selling pens and other articles in the Marine Drive area. Since such activity amounted to child labour, the children were taken before the Child Welfare Committee. On finding that the children 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, the Committee ordered the children to be placed under the care and protection of the Shelter Home (5th respondent). It was stated that for their benefit and holistic development, the children should live and grow in their own culture, the Committee passed an order on 23.12.2022 under Section 95 of the Act, to send the children to CWC, New Delhi for rehabilitation.

The Court after considering the contentions raised by the Petitioners and the Government Pleader opined that the police or the CWC cannot take the children into custody and keep them away from their parents. 

Furthermore, the petitioner also undertook that they would not let the children on the steers for selling articles and that they would take measures to educate the children.

Even as per the general principles to the followed in administration of the Juvenile Justice Act, the best interest principle require all decisions regarding children to be based on the primary consideration that they are in the best interest of the child and to help the child to develop to full potential. As per the principle of family responsibility, the primary responsibility of care, nurture and protection of the child is that of the biological family, the Court observed. 

The Court, therefore, observed that the holistic development of the children cannot be attained by separating them from their biological family, instead the attempt of the State should be to provide the children with proper education, opportunity and facilities to develop in a healthy manner and in conditions of freedom and dignity.

The Court thereby directed that the children be released to the custody of the petitioners.

Case Title: Pappu Bawariya and Anr. v. District Collector Civil Station and Ors.

Citation: 2023 LiveLaw(Ker)10

Click Here To Read/Download The Order