By: Pragya Jha
In the shadowed corners of society, where the iron bars of prison cells cast long, unyielding shadows, lies a silent crisis that is tearing apart the fabric of countless young lives. Imagine growing up within the confines of a prison, not because of any wrongdoing, but because one’s caregiver is incarcerated.
In India, thousands of children spend their formative years behind bars, facing dire conditions and an acute lack of care. As per the Prison Statistics India (PSI) Report 2022, released by the National Crime Records Bureau, there were 1,537 women prisoners with 1,764 children as of December 31, 2022. Among these women prisoners, 1,312 were undertrial prisoners accompanied by 1,479 children, and 198 convicted prisoners accompanied by 230.
This article undertakes a thorough examination of the challenges faced by women prisoners and their children in Indian jails. It explores conditions inside and outside prison walls, evaluates state initiatives, identifies gaps in India’s approach, conducts cross-jurisdictional comparisons, and proposes transformative reforms to improve the welfare of these vulnerable children.
A Closer Look At The Upadhyay Judgement
In R.D Upadhyay v. State of Andhra Pradesh & Ors.,[1] the Hon’ble Supreme Court starkly illuminated the severe hardships endured by women prisoners and their children living in Indian jails. The petitioner was a practicing advocate of the Supreme Court (‘SC’) and he filed the petition under Article 32 [2]of the Indian Constitution to draw attention to the struggles of the undertrial inmates.
The SC identified the issue of the children of the women prisoners that needed consideration for a very long time. Unfortunately, these kids remained an invisible population in the eyes of the government. The three-judge bench unanimously decided that the children whose parents are incarcerated need to be protected more effectively. Since the children suffer in many ways, the Court’s verdict established standards that should be followed by all State and Union territories in order to protect and improve the quality of life for the children of these women inmates. The judgement clearly stated that no female prisoner is allowed to keep their child who has completed the age of six years. [3]
The judgement implied how important early bonding of a child with his/her mother was and the Court’s rationale was that separating a child from his/her mother at such a young age could have a devastating impact. [4]Human babies are born very dependent on their parents. They undergo huge brain development, growth and, neuron pruning in the first two years of life.[5]It is well established that the early childhood is critical for physical, emotional, social, and cognitive development.
Recognising the suffering of these children, the Court mandated strict standards for all states and union territories to safeguard the rights and enhance the quality of life for children living with their imprisoned mothers. Some guidelines issued by the three-judge bench of the Hon’ble Supreme Court of India are:
Firstly, a child in prison with their mother has a basic right to quality food, shelter, medical care, clothing, education, and recreation and shall not be treated as an undertrial like other convicts. Secondly, pregnant women should only be jailed if the facility has adequate childbirth and prenatal or postnatal care. Thirdly, children born in prison must be registered locally without noting the prison birth as it remains a stigma for life. Fourthly, children should be handed to a guardian or a local Social Welfare Department institution after the age of six. Lastly, children over six should visit their mothers at least once a week. State Legal Service Authorities must ensure proper care and procedures for the children’s upbringing.
Bars and Beyond Insights into Current Statistics
The unseen problem of imprisoned children struggling behind bars was brought to light by the Upadhyay Judgement. However, implementing this ruling leaves much to be cover, as there remains a huge gap between implementation and policy.
In 2013, the Hon’ble SC reissued the prior directives and observed the compliance reports from the Union Territories and several State Governments. The Court noted that since 2007, no definite information from the State Legal Services Authorities about compliance of various directions has been received.[6]
The Model Prison Manual, 2016, prepared by the Ministry of Home Affairs (‘MHA’), apprehended the need for special arrangements for the women prisoners and their children and timely visits for better management, and the same was forwarded to all States and Union Territories for adoption and implementation in their respective jurisdictions. As of now, 18 States and all Union Territories have confirmed the adoption of Model Prison Manual 2016.
The Delhi government implemented the Scheme for Financial Sustenance, Education & Welfare of Children of incarcerated Parents 2014. However when a detailed review of the scheme was performed, the Delhi Commission for Protection of Child Rights (‘DCPCR’) found the design and implementation of the scheme to be “unsatisfactory, inaccessible and lackadaisical”.
Children in the developing years of their lives need the protection of life, liberty, and education, which plays a pivotal role in their overall development. National Commission for Protection of Child Rights (‘NCPCR’) resolved to investigate the ‘Educational Status of Children of Women Prisoners in India’. It found that the children living with incarcerated mothers often have limited access to quality educational facilities, with significant variation across states. For instance, one of the female prisoners in Niketan Jail, Uttar Pradesh, shared her views on the current situation of her two children above six years of age who are intellectually paralysed and are not receiving any form of educational support within the prison.
Similarly, in one of the Anganwadi centres from special prison for women inKadapa, Andhra Pradesh, four women prisoners living with their children were completely unaware about the volunteers in the Anganwadi centres.
Separation from mothers and the environment of prisons negatively affect children's psychological health and learning abilities. Around 12% of children further informed the researcher that their classmates bully them and make fun of their mothers being imprisoned in jails, which may result in physical, psychological, social or educational harm.
Hence, the data very clearly conveys that there exists a huge gap in policy making and implementation, and thus, the struggle of children left behind bars remains unanswered.
Cross-Jurisdictional Analysis From Global Standard to Local Realities in Empowering Children of Women Prisoners
Cross-jurisdictional analysis bridges global standards with local realities in empowering children of women prisoners. Various countries across the globe have taken initiatives to evolve their prison systems to make them more child-friendly.
Latin America focuses on improving in-prison services that benefit both parent and child[7], like constructing daycare centres in or near the facilities and providing inmates with good-parenting workshops. In Germany, mothers are allowed to have their children with them in prison until the child reaches six years of age. There are six closed prisons which allow children up to three years old and two open prisons that allow children up to the age of six. In Russia there are 35 correctional colonies for women, 10 of which have accommodation for children. Most of these provide improved conditions, including additional food and showers for the mothers.[8]
Upon cross-jurisdictional analysis, it is clear that significant improvements are needed in India. Learning from child-friendly initiatives in Latin America, Germany, and Russia, India must implement comprehensive reforms to ensure the well-being of the children.
Pathways to Progress and Future Recommendations
Addressing challenges faced by children of incarcerated mothers requires innovative approaches. Firstly, the state governments must align their state-specific prison manuals with the provisions outlined in the National Model Prison Manual 2016, ensuring strict adoption across all jails. The manual guarantees that children residing with their mothers in prisons receive their fundamental rights, including primary education, nutritional needs, health care, and clothing facilities, as per the guidelines established by the Hon’ble SC in the Upadhyay judgement.
Most states’ prison administrations shall aim to create a children-friendly environment. To ensure enrolment of children of women prisoners residing in homes, the DCPO, supported by the District Education Officer (‘DEO’), must ensure that all children aged 6 to 14 years are enrolled in nearby government schools without any charges or expenses that could deter their attendance.
Conclusion
Despite the Upadhyay judgement setting welfare standards, implementation remains uneven across India, leaving many children neglected. Urgent reforms are essential to bridge the gap between policy and practice. Strengthening existing policies, regular monitoring, holistic care programs, staff training, public awareness campaigns, and Non-Governmental Organisation collaborations can ensure that every child receives the nurturing environment and educational foundation they deserve.We have guidelines, laws, and policies to address the neglected condition of these innocent lives. However, the solution lies in the implementation. The state prison authorities must follow the established rules and ensure the proper execution of welfare schemes passed in their respective states to protect these vulnerable children.
[1] R.D Upadhyay v. State of Andhra Pradesh & Ors., AIR 2006 SUPREME COURT 1946.
[2] INDIA CONST. art. 32.
[3] Nidhi Saroj, Dr. Fakkiresh S. Sakkarnaikar, Case Comment on R.D. Upadhyay v. State of A.P., CMR UNIVERSITY, https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/11/Nidhi-Case-study.pdf.
[4] Sukanya Shantha, When 'Bandi' Is Both a Game and Life: The Children of India's Women Prisoners, THE WIRE, https://thewire.in/rights/children-women-prisoners-india#:~:text=The%20court's%20rationale%20was%20that,at%20least%20once%20a%20week.
[5] Robert Winston, Rebecca Chicot, The importance of early bonding on the long-term mental health and resilience of children, 8 LONDON J PRIM CARE 12, (2016).
[6] Ruchika Nigam, A childhood lost behind bars, INDIA TOGETHER, https://indiatogether.org/prison-children.
[7] Jean Freidman Rudovsky, La Paz, In Bolivia, Keeping Kids and Moms Together — in Prison, TIME, https://time.com/archive/6946319/in-bolivia-keeping-kids-and-moms-together-in-prison/.
[8] Mothers and babies in prison, PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE, https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=8953&lang=EN.
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