“Such repatriation may be done on a case to case basis but not as a general order…. This may be problematic for the children who are sent back,” a bench led by Justice L Nageswara Rao observed issuing the notices to the Commission.
The case will now be heard again on November 24.
The central government, represented through Additional Solicitor General Aishwarya Bhatti, acknowledged that the pandemic has made children more vulnerable than before to abuse and exploitation, and said she would get back with information on why such an order was passed.
Senior advocate Gaurav Agrawal, the amicus curiae in the case in which the court had asked the institutions to ensure that there is no overcrowding in children’s homes to check the spread of the pandemic, drew the court’s attention to the NCPCR’s September 24 letter.
The letter had asked collectors and district magistrates in several states to immediately produce the children before the child welfare committees so that they could be sent back to their parents.
The letter had directed that the children be handed back to their parents, guardians or persons fit to take care of them. It had said that poverty cannot be a reason not to hand back children to their parents.
The amicus objected to this, citing concerns over the impact of any such decision on the institutional mechanism to take care of vulnerable children in the country at a time when they need more care.
The impact of the pandemic has led to a spurt in domestic abuse, child marriages, child labour and poverty, and would have a greater impact on children who are already vulnerable, a note submitted by the amicus to the court said.
The amicus said the need for institutional care cannot be undermined and any deficiencies must be addressed instead of repatriating the children.
“Many children are placed in child care institutions due to poverty and incapacity of the parents to look after them. There are children who are orphaned, abandoned, surrendered, victims of child abuse, trafficking, child labour, child marriage, and homelessness. For them, institutional care is the only resort,” said the amicus.
According to the amicus, the NCPCR cannot cite a top order which was only a temporary measure to contain the spread of the disease to direct that the children be sent back to their parents disregarding the statutory scheme of the Juvenile Justice Act, 2015.
Only the child welfare committees can analyse the condition of the children on a case to case basis under the Act, the amicus said.