High Court Is A 'Superior Custodian' Than CWC: Madhya Pradesh HC Directs State To Produce Children Allegedly Rescued From Their Parents

While hearing a Habeas Corpus petition filed by 10 parents for production of their minor children in custody of Child Welfare Committee, the Madhya Pradesh High Court on Thursday said that the high court is the superior custodian than the Child Welfare Committee and it will decide whether children need to be rescued and kept in a childcare institution.During the hearing when counsel told the court that the children had been rescued, the high court orally said that it shall speak to the children and ask if they needed to be rescued. It further said that the Constitution is supreme and the high court's power under Article 226 is "far superior to the power of CWC or the powers under the JJ Act.”The court further orally noted that there was something more which was not coming to light by the State after noting that its report was "completely silent as to what was the condition of the children" and if the children being deprived of food, clothing or education. It thereafter directed the presence of the children and their parents tomorrow as well as the CWC. A division bench of Justice Sanjeev Sachdeva and Justice Vinay Saraf further orally said, “If there is anything amiss, we will make sure that the children are not put through that. But we are not ready to accept the proposition that court has no power and only child welfare committee will decide. Ultimately this court is the superior custodian. If there is anything brought on record by the Child Welfare Committee that the children were being mistreated or misused, we will take action against whoever was responsible. That we assure you.”The court was hearing the habeas corpus plea by the parents who claimed that their children had been illegally detained by the Child Welfare Committee constituted under the Juvenile Justice Act. The matter came up before the Court on February 4 wherein the Court had directed to produce the children.During the hearing on February 6, the court asked, “Is there an order for keeping the children in children home? Their parents are here.”The counsel for State said, “The parents were also directed to be here. The order was communicated by the police to the Child Welfare Committee and the CWC has uploaded one letter…”The counsel for the State thereafter read the aforesaid letter to the Court.Referring to an Indore Bench judgement, the Counsel for State stated, “Baal Kalyan samiti nabalig baccho ke mamle me baccho ke sarvottam hit me unko kisi sansthan me rakhne ka aadesh karti hai toh uss aadesh ko bandi ke shreni me nahi rakha jaa sakta.” (If the Child Welfare Committee orders to keep minor children in some institution for their best interests, then that order cannot be kept in the category of detention.)The Court asked, “Does this mean they will refuse to produce the children? There was a direction to produce the children.”The counsel for State said, “We communicated the Police and he immediately contacted the Sagar Child Welfare Committee who is taking care of the children and we had made all possible endeavours to produce the children before this Hon'ble court but the fact remains that the division bench judgement of this Court…”The Court said, “That's alright. But does that mean the direction will be completely ignored? This letter/report says they called the parents, the parents didn't come so that proceeding was kept in abeyance. So the parents are here. We will direct the parents to appear before the CWC.” The Counsel for State submitted, “There is a special law which is called the Juvenile Justice Act, 2015…”The Court said, “Show us under which provision you're keeping them in custody. You can take away the children without any complaint? Mr. Singh, please produce the children tomorrow. We will hear your submission once the children are before us.”The court further said, “The case you're referring to…in that case the children refused to go with the parents and the petition was filed by a society. Here, the parents are coming forward. Children are studying in a school, their examinations are around the corner and you detain them without any authority?”The counsel for State said however said that the detention is not the appropriate word. To this court asked if the children are free to leave the place without any embargo and if they can step out of the premises. To this the counsel said that the children cannot leave. The court asked, “Then what is detention?” As the counsel said that this was a case of "rescue" the court said that it shall speak to children and find out if they "needed rescue".The court said, “The Constitution is supreme. This court's power under Article 226 is far superior to the power of CWC or the powers under the JJ Act.”The counsel said, “Consider my submission…if prima facie, the children are found to be child in need of care and protection…”To this the court however orally asked, “Who will decide this? You mean to say the division bench of High Court exercising power under Art. 226 does not have the...

High Court Is A 'Superior Custodian' Than CWC: Madhya Pradesh HC Directs State To Produce Children Allegedly Rescued From Their Parents

Anukriti Mishra

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