'Children helping parents in selling articles doesn't amount to child labour' says Kerala HC

Rajasthan— In a recent decision, the Kerala High Court ordered release of two kids from a Kochi state shelter home and let them reunite with their parents. The kids who are 6 and 7 years old originally belong to Rajasthan's Bawariya community. They were nabbed by the Kochi police who found the kids selling stationary items on the marine drive area with their parents in November last. 

The local Child Welfare Committee (CWC) ordered to transfer the kids and hand over them to Delhi CWC since the children had their permanent address there. However, their parents filed a petition at the High Court demanding their release and not separate them from their respective families. 

The petitioners, natives of Rajasthan told the court that they had migrated to Delhi in search of livelihood. Compelled by impecunious circumstances and inclement weather, the families come down to Kerala for a few months every year and eke a living by selling pens, chains, bangles, rings etc. 

On 29 November,  the children were nabbed by the police alleging that they were being forced to dochild labour by selling articles on the streets. The writ petition was filed seeking a direction to the respondents to give their custody back to their parents.

The CWC in its response said that the police found the kids selling pens and other articles in the Marine Drive area and hence 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 further said that the petitioners and the children are permanent residents of South Delhi and are presently residing in a single-room dwelling in city lodge in Iyyattu Junction in Ernakulam. It is also stated that, being of opinion that, for their benefit and holistic development,

the children should live and grow in their own culture, the Committee passed an order under Section 95 of the Act, to send the children to CWC, District South East, New Delhi for rehabilitation. 

The Judge's observation

After hearing the counsel for the petitioners and the  government pleader Judge V.G Arun said in his order, "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. On interaction with the petitioners, they undertook not to let the children onto the streets for selling articles and to take measures for educating them. I wonder as to how the children can be provided proper education while their parents are leading a nomadic life."

The judge also said that 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.

Therefore, the holistic development of the childfen cannot be attained by separating them from their biological family. 

EXPERTS OPINION

"Courts decisions specially when it involves vulnerable children, are based on humanitarian grounds. The children were neither forced for begging nor were engaged in any hazardous activities and hence the court's decision is commendable.. The family is the best fitted unit to take care of the best interest of a child," Bhojraj Padampura, member of state high power committee on the prevention of child labour & trafficking. 

"The court's order is in contravention to the provisions of the JJ Act and principles mentioned in the Right To Education for children below 14 years. The children should be send to proper school and since the parents are wanderers, it is likely that the children would roam around with their families and hence would not be able to get educated which is unfortunate. This decision is challengeable before the Supreme Court," Dr. Shailendra Pandya, ex-member Rajasthan State Commision for Protection of Child Rights.