In response to a public interest litigation, the Supreme Court of India has issued directions to the central and state governments to provide children of women prisoners in jail, and their mothers, the facilities and opportunity to lead normal healthy lives
Prisons are daunting places even for adult men; they are probably far worse for women prisoners. Jail manuals that govern the running of prisons do not contain any special provisions for children of women prisoners who constitute a particularly vulnerable category. The women are in prison either as undertrials accused of an offence, or as convicts. Unlike other inmates, the children are in jail not for any delinquent behaviour but because their mothers are in jail. Either they are born in jail, or they are too young to stay away from their mothers, or there is no one to look after them in the absence of their mother.
In response to a public interest litigation dealing with undertrial prisoners, the Supreme Court carried out an in-depth examination of the issue and gave extensive directions with regard to the children of women prisoners, in a judgment delivered on April 13, 2006. The court took note of various provisions in the Constitution as well as laws enacted for the benefit of children.
Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However, it allows special provisions for women and children. Article 21A provides for free and compulsory education to all children from the ages of six to 14 years. Article 24 prohibits employment of children below 14 years in mines, factories or any other hazardous employment. The court also took note of Article 14 guaranteeing equality, and Article 21 providing that a person cannot be deprived of life and liberty except according to procedure established by the law. Similarly, Article 23 prohibiting human trafficking and forced labour was also referred to in the court’s judgment.
Moving away from fundamental rights to the directive principles, the court pressed into service provisions relating to the health of women and children. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and moral and material abandonment. Article 42 directs the State to make provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates that the State shall provide early childhood care and education for all children until the age of six. Article 47 lays down the raising of level of nutrition and standard of living of people, and improvement of public health as a primary duty of the State.
The judgment refers to the existence of around 12 laws, ranging from the Guardian and Wards Act and Child Marriage Restraint Act to the Juvenile Justice Act and Immoral Traffic (Prevention) Act which make provisions for the benefit of children. The court took note of the national policy for children, directing the state to provide adequate services for children both before and after birth, and during the growing stages, for their full physical, mental and social development. The policy suggests a comprehensive health programme, supplementary nutrition for mothers and children, promotion of physical education and recreational activities, special consideration for children of weaker sections, and the prevention of child exploitation.
The court referred to the fact that India had acceded to the UN Convention on the Rights of the Child, in 1992, and the UN General Assembly Special Session on Children in 2002 with the objective of giving every child the right to survival and development in a healthy and congenial environment. The judgment also took note of the announcement of the National Charter for Children 2003 by the Government of India, to secure for every child the right to enjoy a happy childhood and to address the root causes that negate the health, growth and development of children. The charter provides for life and liberty of all children, promoting high standards of health and nutrition, assuring basic needs and security, play and leisure and all-round development of personality including expression of creativity.
The court referred to a study on children of women prisoners in India, carried out by the National Institute of Criminology and Forensic Sciences. The salient features of this study are:
- Most children were living in difficult conditions and suffered deprivation relating to food, healthcare, accommodation, education and recreation.
- There were no programmes for the proper bio-psycho-social development of children in prisons. Their welfare was mostly left to the mothers. There was no trained staff to take care of the children.
- In many jails, women inmates with children were not given any special or extra food. In some jails, extra food was given in the form of a glass of milk; in others, separate food was being provided only to children over the age of five. The quality of food supplied was the same as that given to adult prisoners.
- No special consideration was given to child-bearing women. The same food and facilities were given to all women, irrespective of whether their children were living with them or not.
- No separate or specialised medical facilities for children were available in jails.
Most mother prisoners felt that the stay in jail would have a negative impact on the physical and mental development of their children. - A crowded environment, lack of appropriate food and shelter, deprivation of affection by other members of the family, particularly the father, were perceived as stumbling blocks in the development of these children in their formative years.
- Mother prisoners identified food, medical facilities, accommodation, education, recreation and the separation of children from habitual offenders as six areas that require urgent improvement.
- There were no prison staff specially trained to look after children in jails. Also, no separate office with the exclusive duty of looking after the children or their mothers.
TThe court directed the states and union territories to provide information on the number of female undertrial prisoners, along with the nature of the offence for which they had been detained. Also, period of detention, number of children in jail with their mothers, number of convicted female prisoners and their children, facilities available at the jail for taking care of children and the age up to which a child was permitted to stay with the mother in jail. The states and union territories complied with the request.
A report by the Tata Institute of Social Sciences, which put forward five grounds as the basis for suggestions on the provision of facilities for minors accompanying their mothers in prison, was placed before the court. The report says:
- Prison environments are not conducive to the normal growth and development of children.
- Many children born in prison have never experienced normal family life up to the age of four-five years.
- The socialisation pattern of children gets severely affected due to their stay in prison. Their only image of a male authority figure is that of the police and prison officials. They are unaware of the concept of a ‘home’. Boys sometimes talk in the female gender, having grown up only among women in the female ward. Sights like animals on roads frighten these children because of lack of exposure to the outside world.
- Children get transferred with their mothers from one prison to another. This unsettles them.
- Such children sometimes display violent and aggressive, or withdrawn behaviour in prison.
The court studied specific suggestions with respect to children’s health, education, nutrition, clothing, upbringing, socialisation and other related matters. Similarly, various schemes initiated by the women and child department, such as the Reproductive and Child Health Programme, Integrated Child Development Project and the Sarva Shiksha Yojana were placed before the court. The court also took note of a Model Prison Manual with special provision for children of women prisoners, prepared by a national expert committee on Women Prisoners, headed by Justice Krishna Iyer.
The court observed that several legislative and policy measures had been taken over the years to further the rights of the child. However, the court felt, it was clear from the affidavits of various state governments and union territories, as well as the central government, that children of women prisoners who are in jail require additional protection.
Taking various reports, studies and information supplied by the central and state governments into account, the apex court, in its judgment dated April 13, 2006 (reported as R D Upadhyaya versus State of AP, 2006 (4) SCALE 336), issued directions and guidelines to ensure that certain minimum standards are observed with respect to the children of women prisoners.
Firstly, the judgment makes it clear that a child shall not be treated as an undertrial/convict while in jail with his/her mother. Such a child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right. The court directed that before sending a pregnant woman to jail, the authorities must ensure that the jail has the basic minimum facilities for delivery as well as prenatal and post-natal care for both mother and child. If a woman prisoner is found to be pregnant at the time of her admission, or afterwards, arrangements must be made to get her examined at the district government hospital. The state of her health, pregnancy and probable date of delivery should be ascertained and proper prenatal and post-natal care provided in accordance with medical advice.
The judgment directs that as far as possible, arrangements for temporary release/parole or suspended sentence, in the case of minor offences, should be made to enable a pregnant prisoner deliver her baby outside prison. Only exceptional cases that constitute a high security risk should be denied this benefit of temporary release. Births that take place inside the prison must be registered with the local birth registration office. However, the fact that the child was born in prison should not be recorded; only the locality must be mentioned in the birth certificate. As far as circumstances allow, facilities for the naming rites of children born in prison should be extended.
The age up to which female prisoners are allowed to keep their children varies from between two and six years, according to various state laws. In Bihar, children are allowed to live with their mothers up to the age of two and, in special cases, up to the age of six. In the Andaman and Nicobar Islands, a child can stay with the mother up to the age of five; in Himachal Pradesh, the age is four years. In Tamil Nadu, Delhi and Karnataka, a child is allowed to live with his/her mother up to the age of six.
The Supreme Court has laid down a uniform guideline applicable to all prisons in the country: female prisoners will be allowed to keep their children with them in jail until they attain the age of six years. After the age of six, the child will be handed over to a surrogate, in accordance with the mother’s wishes, or put in an institution run by the social welfare department. Children above the age of six must be put in an institution in the same city as the prison and must be allowed to meet the mother at least once a week. In case a female prisoner dies leaving behind a child, the district magistrate must arrange for the child to be properly looked after, either by a concerned relative or a responsible person, or put into a social welfare department home.
The judgment lays down that children in jails should be provided with adequate clothing suitable to the local climate. States and union territories were directed to lay down dietary scales for children, keeping in mind the calorific requirements of growing children in accordance with medical norms. Prisons have been directed to make arrangements to provide separate food, fulfilling the nutritional needs of children, separate utensils, clean drinking water and adequate and clean sleeping facilities. Regular medical examinations to monitor physical growth, timely vaccinations, alternative arrangements for looking after a child should the mother falls ill form part of the guidelines laid down. Children of prisoners were also accorded visitation rights.
The judgment observes that proper educational and recreational opportunities must be provided to children of female prisoners. It directs that a crèche and nursery be attached to prisons. Children below three years of age should be put into a crèche, and from three to six years in a nursery. crèches and nurseries should, preferably, be located outside the prison premises. These facilities must also be extended to children of warders and other female prison staff.
Women with small children must not be put into jails where proper facilities for the biological, psychological and social growth of the child cannot be provided. Staying in crowded barracks, amidst convicts, undertrials and offenders who have committed violent crimes, was held to be harmful to a child’s development. The judgment also incorporated a dietary scale prepared by the National Institute of Nutrition, Council of Medical Research, Hyderabad , for a balanced diet for infants and children up to the age of six.
The court directed the amendment of jail manuals and rules within three months, to implement the guidelines. Courts dealing with cases relating to women prisoners whose children are in prison with their mothers were directed to give these cases priority and decide on them expeditiously. The problem of implementation of judgments or laws is an acute one. Although there have been earlier judgments regarding prison conditions and prisoners’ rights, in practice little has changed, though at times the court does attempt to evolve mechanisms to try and ensure implementation. In the present case, the state legal services authorities were directed to periodically inspect and see that the directions regarding mothers and children in jail were being followed. The court also directed that the central government, state governments and union territories file affidavits with respect to the judgment’s implementation, within four months. Courts, however, do not have an independent machinery to crosscheck implementation. Only time will tell whether this judgment has had any true impact on the condition of the children of women prisoners who are in jail with their mothers.
