The Supreme Court was hearing a suo motu case on the condition of children amid the pandemic.
The Supreme Court on Friday sought a response from the national child rights body while taking note of its letter which directed eight states, accounting for over 70 per cent of children in care homes, to ensure their return to their families.
The National Commission for Protection of Child Rights (NCPCR), was issued a notice by Justices L Nageswara Rao, Hemant Gupta and Ajay Rastogi who noted the letter and posted the matter for further hearing on November 24.
The top court also asked Additional Solicitor General Aishwarya Bhati, appearing for the centre, to take instructions in this regard.
Senior advocate Gaurav Agrawal, appointed an advisor to the court in the case, brought to the court's notice the letter and said that as the COVID-19 pandemic still persists in these states, the NCPCR should not have issued it.
"The NCPC letter is contrary to law provisions. It cannot order repartition of children from homes. As per the law, only Child Welfare Committees can decide on repatriation on a case-to-case basis. Children at homes have faced domestic abuse, child labour, child marriages, trafficking and they need care and protection," he said.
The top court was hearing a case that it had taken up on its own on the condition of children in protection, juvenile and foster or kinship homes across the country amid the coronavirus outbreak. It had earlier issued directions to the state governments and various other authorities to protect them.
On July 21, the top court had asked the centre to file an affidavit giving details about the funds made available to all states and union territories for running child care institutions.
The top court also asked Mr Agrawal to submit a note on the good practices that are being adopted by various states for the care and welfare of children.
The NCPCR had on September 24 issued a letter to Tamil Nadu, Andhra Pradesh, Telangana, Mizoram, Karnataka, Kerala, Maharashtra and Meghalaya, stating that it is the right of every child to grow up in a familial environment.
It had said the decision was taken keeping in view the alarming concerns over the safety and security of children residing in these institutions.
These eight states have 1.84 lakh or nearly 72 per cent of children in child care homes out of a total of 2.56 lakh in the country.
The NCPCR had directed the district magistrates and collectors of these states to ensure that the children living in these care homes return to their families, preferably within a 100-day period.
Those who could not be sent back to their families must be placed for adoption or in foster home, it added.
The NCPCR letter said that social audit reports showed that maximum number of children in need of care and protection (CNCP) placed in these homes are located in five southern states, "which paints an unsettling picture indicating a pitiable condition of children."
It had that the NCPCR would monitor this entire exercise until its thorough implementation and till every child in need of care and protection placed in these centres is sent back to his or her family or be placed for adoption and foster care.
The states have been asked to immediately produce all the children in need of care and protection staying in these shelters before the Child Welfare Committee for their immediate return to family, and inform the commission of the progress.
(With inputs from PTI)