Full Judgment Text
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CASE NO.:
Writ Petition (civil) 559 of 1994
PETITIONER:
R.D. Upadhyay
RESPONDENT:
State of A.P. & Ors.
DATE OF JUDGMENT: 13/04/2006
BENCH:
Y.K. Sabharwal, C.K. Thakker & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
[With WP (C)No.133/02, SLP (C) Nos.14303-14305/98,
CA No.2468/98, SLP (C) No.________/98 (CC-5347/98)
Crl.A.No.69/2000 and WP (C) No.84/98]
Y.K. Sabharwal, CJI.
Concerned by the plight of the undertrial prisoners
languishing in various jails in the country, various
directions were issued by this Court from time to time.
Presently, we are considering mainly the issue of directions
for the development of children who are in jail with their
mothers, who are in jail either as undertrial prisoners or
convicts. Children, for none of their fault, but per force,
have to stay in jail with their mothers. In some cases, it
may be because of the tender age of the child, while in other
cases, it may be because there is no one at home to look
after them or to take care of them in absence of the mother.
The jail environment are certainly not congenial for
development of the children.
For the care, welfare and development of the children,
special and specific provisions have been made both in Part
III and IV of the Constitution of India, besides other
provisions in these parts which are also significant. The
best interest of the child has been regarded as a primary
consideration in our Constitution. Article 15 prohibits
discrimination on grounds of religion, race, caste, sex or
place of birth. Article 15(3) provides that this shall not
prevent the State from making any special provision for
women and children. Article 21A inserted by 86th
Constitutional Amendment provides for free and compulsory
education to all children of the age of six to fourteen years.
Article 24 prohibits employment of children below the age of
fourteen years in any factory or mine or engagement in
other hazardous employment. The other provisions of Part
III that may be noted are Articles 14, 21 and 23. Article 14
provides that the State shall not deny to any person equality
before the law or the equal protection of the laws within the
territory of India. Article 21 provides that no person shall
be deprived of his life or personal liberty except according to
procedure established by law. Article 23 prohibits
trafficking in human beings and forced labour. We may also
note some provisions of Part IV of the Constitution. Article
39(e) directs the State to ensure that the health and
strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age
or strength. Article 39(f) directs the State to ensure that
children are given opportunities and facilities to develop in a
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healthy manner and in conditions of freedom and dignity
and that childhood and youth are protected against
exploitation and against moral and material abandonment.
Article 42 provides that the State shall make provision for
securing just and humane conditions of work and maternity
relief. Article 45 stipulates that the State shall endeavour
to provide early childhood care and education for all
children until they complete the age of six years. Article 46
provides that the State shall promote with special care the
educational and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation. Article 47
provides that the State shall regard the raising of the level of
nutrition and the standard of living of its people and the
improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.
Apart from the aforesaid constitutional provisions,
there are wide range of existing laws on the issues
concerning children, such as, the Guardians and Wards
Act, 1890, Child Marriage Restraint Act, 1929, the Factories
Act, 1948, Hindu Adoptions and Maintenance Act, 1956,
Probation of Offenders Act, 1958, Orphanages and Other
Charitable Homes (Supervision and Control) Act, 1960, the
Child Labour (Prohibition and Regulation) Act, 1986,
Juvenile Justice (Care and Protection of Children) Act,
2000, the Infant Milk Substitutes, Feeding Bottles and
Infant Foods, (Regulation of Production, Supply and
Distribution) Act, 1992, Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994, Persons
with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995, Immoral Traffic
(Prevention) Act, 1986.
The Juvenile Justice Act, 2000 replaced the Juvenile
Justice Act, 1986 to comply with the provisions of the
Convention on the rights of the child which has been
acceded to by India in 1992.
In addition to above, the national policy for children
was adopted on 22nd August, 1974. This policy, inter alia,
lays down that State shall provide adequate services for
children both before and after birth, and during the growing
stages for their full physical, mental and social
development. The measures suggested include amongst
others 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 prevention of
exploitation of children.
India acceded to the UN Convention on the rights of
the child in December 1992 to reiterate its commitment to
the cause of the children. The objective of the Convention is
to give every child the right to survival and development in a
healthy and congenial environment.
The UN General Assembly Special Session on children
held in New York in May 2002 was attended by an Indian
delegation led by Minister of Human Resource Development
and consisted of Parliamentarians, NGOs and officials. It
was a follow up to the world summit held in 1990. The
summit adopted the declaration on the survival, protection
and development of children and endorsed a plan of action
for its implementation.
The Government of India is implementing various
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schemes and programmes for the benefit of the children.
Further, a National Charter for children 2003 has been
adopted to reiterate the commitment of the Government to
the cause of the children in order to see that no child
remains hungry, illiterate or sick. By the said Charter, the
Government has affirmed that the best interests of children
must be protected through combined action of the State,
civil society and families and their obligation in fulfilling
children’s basic needs. National Charter has been
announced with a view to securing for every child inherent
right to enjoy happy childhood, to address the root causes
that negate the health, growth and development of children
and to awake the conscience of the community in the wider
societal context to protect children from all forms of abuse,
by strengthening the society and the nation. The National
Charter provides for survival, life and liberty of all children,
promoting high standards of health and nutrition, assailing
basic needs and security, play and leisure, early childhood
care for survival, growth and development, protection from
economic exploitation and all forms of abuse, protection of
children in distress for the welfare and providing
opportunity for all round development of their personality
including expression of creativity etc.
The National Institute of Criminology and Forensic
Sciences conducted a research study of children of women
prisoners in Indian jails. The salient features of the study
brought to the notice of all Governments in February 2002,
are :
(i) The general impression gathered
was the most of these children were living
in really difficult conditions and suffering
from diverse deprivations relating to food,
healthcare, accommodation, education,
recreation, etc.
(ii) No appropriate programmes were
found to be in place in any jail, for their
proper bio-psycho-social development.
Their looking after was mostly left to their
mothers. No trained staff was found in
any jail to take care of these children.
(iii) It was observed that in many jails,
women inmates with children were not
given any special or extra meals. In some
cases, occasionally, some extra food,
mostly in the form of a glass of milk, was
available to children. In some jails,
separate food was being provided only to
grown up children, over the age of five
years. But the quality of food would be
same as supplied to adult prisoners.
(iv) No special consideration was
reported to be given to child bearing
women inmates, in matters of good or
other facilities. The same food and the
same facilities were given to all women
inmates, irrespective of the fact whether
their children were also living with them
or not.
(v) No separate or specialised medical
facilities for children were available in
jails.
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(vi) Barring a few, most mother
prisoners considered that their stay in
jails would have a negative impact on the
physical as well as mental development of
their children.
(vii) Crowded environment, lack of
appropriate food, shelter and above all,
deprivation of affection of other members
of the family, particularly the father was
generally perceived by the mothers as big
stumbling blocks for the proper
development of their children in the
formative years of life.
(viii) Mother prisoners identified six areas
where urgent improvement was necessary
for proper upkeep of their children. They
related to food, medical facilities,
accommodation, education, recreation
and separation of their children from
habitual offenders.
(ix) No prison office was deployed on the
exclusive duty of looking after these
children or their mothers. They had to
perform this duty alongside many other
duties including administrative work,
discipline maintenance, security-related
jobs etc. None of them was reported to
have undergone any special training in
looking after the children in jails.
Some of the important suggestions emanating from the
study are :
(i) In many States, small children were
living in sub-jails which were not at all
equipped to keep children. Women
prisoners with children should not be
kept in such sub-jails, unless proper
facilities can be ensured which would
make for a conductive environment there,
for proper bio-psycho-social growth of
children.
(ii) Before sending a woman in stage of
pregnancy, to a jail, the concerned
authorities must ensure that particular
jail has got the basic minimum facilities
for child delivery as well as for providing
pre-natal and post-natal care for both to
the mother and the child.
(iii) The stay of children in crowded
barracks amidst women convicts,
undertrials, offenders relating to all types
of crime including violent crimes, is
certainly harmful for such children in
their personality development. Children
are, therefore, required to be separated
from such an environment on priority
basis, in all such jails.
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(iv) A permanent arrangement needs to
be evolved in all jails, to provide separate
food with ingredients to take care of the
nutritional needs of children to them on
regular basis.
(v) Children of women prisoner should
be provided with clothes, bed sheets, etc.
in multiple sets. Separate utensils of
suitable size and material should also be
provided to each mother-prisoner for
giving food to her child.
(vi) Medical care for every child living in
a jail has to be fully ensured. Also, in the
event of a women prisoner falling ill
herself, alternative arrangements for
looking after the child should be made by
the jail staff.
(vii) Adequate arrangements should be
available in all jails to impart education,
both formal and informal, to every child
of the women inmates. Diversified
recreational programmes/facilities should
also be made available to the children of
different age groups.
(viii) A child living in a jail along with her
incarcerated mother is not desirable at
all. In fact, this should be as only the
last resort when all other possibilities of
keeping the child under safe custody
elsewhere have been tried and have
failed. In any case, it should be a
continuous endeavour of all the sectors of
the criminal justice system that the least
number of children are following their
mothers to live in jails.
The State Governments and Union Territories were
requested to consider the aforesaid suggestions for
implementation.
By filing IA Nos.1 and 7, the attention of this Court has
been drawn to the plight of little children on account of the
arrest of their mothers for certain criminal offences.
I.A. No. 1 was filed by Women’s Action Research and
Legal Action for Women (WARLAW), through its program
coordinator, Ms. Babita Verma stating that more than 70%
of the women prisoners are married and have children. At
the time of arrest of the women prisoners having children,
indiscriminate arrest is not confined only to women/mother
prisoners but such arrest is automatically extended to these
children who are of tender age and there is no one to look
after the child and take care of the child without their
mother. Such children are perforce subjected to a kind of
arrest for no offence committed by them. Further, the
atmosphere in jail is not congenial for a healthy upbringing
of such children. There are two non-Governmental
organizations (NGO’s), namely Mahila Pratiraksha Mandal
and Navjyothi who are counsellors. Adjoining the jail
premises at Delhi there is Nari Niketan which is a women’s
reform home. Some of the children who are detained in jail
are sent to Kirti Nagar Children’s home for their studies.
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The arrangement pertaining to the education and looking
after of these children is not adequate. To the best of the
information of the applicant, there is no specific provision or
regulation in Jail Manual for facilitating the mother
prisoners to meet the children. It is for the family protection
of these women prisoners including their minor children
that the trial period of undertrials shall be minimised and a
period of two years shall be fixed.
It was suggested that arrest of women suspects be
made only by lady police. Such arrests should be sparingly
made as it adversely affects innocent children who are taken
into custody with their mother. To avoid arrest of innocent
children the care and custody of such children may be
handed over to voluntary organizations which can assist in
the growth of children in a congenial and healthy
atmosphere. Periodic meeting rights should be available to
the women/mother prisoners in order to mother the healthy
upkeep of the children.
A letter dated 8th March, 2000 written by a 6 years old
girl child, studying in upper KG in a school at Bangalore, to
Chief Justice of India enclosing an article ’Dogged by Death
in Jail’ in a women’s magazine dated 20th January, 2000
narrating plight of children in jail with their mothers, was
registered as IA No.7. The article, inter alia, notes that the
fate of the women undertrials is more pitiable because some
of them live with their tiny tots whether born at home or
inside the jail and that a visitor to jail is sure to see a series
of moving scenes.
The order dated 20th March, 2001 notes that the
learned Solicitor General shares the concern of the Court
regarding the plight of the children in jail and the
submission that with a view to frame some guidelines and
issue instructions, it would be necessary to first ascertain
the number of female prisoners in each of the jails, in each
of the States/union Territories, the offences for which they
have been arrested; the duration of their detention and
whether children with any of those female prisoners are also
lodged in jail. The Court directed the States and Union
Territories to disclose on affidavit the following :
(i) The number of female prisoners (undertrial)
together with the nature of offence for which
they have been detained;
(ii) Period of their detention;
(iii) Children, if any, who are with the mothers
lodged in the jail;
(iv) Number of convicted female prisoners and
whether any children are also lodged with
such convicts in the jails;
(v) Whether any facilities are available in the jail
concerned for taking care of such children
and, if so, the type of facilities."
Various State Governments and Union Territories
submitted reports which provided detailed answers to the
aforestated questions. The following is a brief conspectus of
the reports filed :
In the Andaman & Nicobar Islands, children are
allowed to live with their mothers up to the age of 5 years. A
special diet is prescribed for children by the Medical Officer
including proper vitamins and minerals. As far as the future
of the children is concerned, in consultation with the
District Magistrate, the children are handed over to the
relatives or to some trustworthy person as selected by the
District Magistrate himself.
In Andhra Pradesh, milk is provided to the children
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every day with a protein diet for elder kids. Special medical
facilities are available as prescribed by the Medical Officer.
Vaccines like Polio etc are provided at regular intervals.
Education is also provided.
In Assam, children are allowed to live with their
mothers up to the age of 6 years. Literary training is
provided to small children who are lodged with their
prisoner mothers. Lady teachers are also present.
Instructions have been issued to provide sufficient study
material to the children, as also adequate playing material.
As for their future, in consultation with the District
Magistrate, the children are handed over to the relatives or
to some trustworthy person as selected by the District
Magistrate himself.
In Bihar, children are allowed to live with their
mothers up to the age of 2 years and up to 5 years in
special cases where there is no other caretaker for child.
Provision is made for special ration above and beyond the
normal labouring ration for nursing mother and for
supplementary cow’s milk for children under the age of one
year not receiving sufficient milk from the mother. Provision
is also made for ration for children from 12-18 months, and
from 18-24 months or as specified by the Medical Officer.
Health and clothing facilities are provided by the
Government. Toys and other forms of entertainment are also
available in some jails.
In Chandigarh, a special diet is provided for. Medical
facilities are also present.
In Chhattisgarh, children are allowed to live with their
mothers up to the age of 6 years. Normal food and
additional milk is provided. Polio drops are provided on
pulse polio day. Medical treatment is done by full time and
part time doctors present in the jail. Children are sent
outside for expert medical treatment and advice if required.
NGO’s have provided for clothes. Inside the jail, a child
education centre is being run so that they develop interest
in education and may learn to read and write. TV and fans
for the female prisoners and their kids have been provided
by some social service organizations, as also sports and
recreation material, swings and cycles. Children are taken
to public parks and for public functions to get acquainted
with the outside world. After the age of six, these children
are sent to the local ’children’s home’, where their primary
education starts. Female children are sent to the Rajkumari
Children’s Home at Jabalpur where there is adequate
arrangement of education
In Delhi, children are allowed to live with their
mothers up to the age of 6 years. A special diet inclusive of
750 gm milk and one egg each is provided to children in jail.
Proper diets and vaccine for popular diseases are adequately
provided for the children. Clothing is also provided for.
Children above 4 years are taught to read and write. They
are prepared for admission to outside schools. Sponsorships
for the funding of the children education is provided for by
the CASP (Community Aid Sponsorship Programme). Two
NGO’s by the name of Mahila Pratikraksha mandal and
Navjyoti Delhi Police Foundation run crhches. Picnics are
arranged by NGO’s to take them to the Zoo and parks and
museums to make them familiar with the outside world.
Admission of the children above 5 years of age to
Government cottage homes and to residential schools is
facilitated through NGO’s.
In Goa, the report states that dietary facilities for
children are provided by the Government. The Medical
Officer of the primary Health Centre, Candolim visits
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prisoners and children twice a week. If required, they are
sent for better treatment to Government Hospitals.
In Gujarat, a special diet and special medical facilities
as prescribed by the Medical Officer are available for
children. Cradle facilities are provided for infants.
In Haryana, a standard diet of rice, flour, milk and dal
is provided with a special diet provided on the advice of
Medical Officer. Health issues are looked after as per the
advice of Medical Officer. Regular literacy classes are taken
by two lady teachers on deputation from the State
Education Dept. at Borstal Jail, Hissar. Books and toys are
provided.
In Himachal Pradesh, children are allowed to live with
their mothers up to the age of 4 years or in special cases up
to 6 years by the approval of the Superintendent. Children
under the age of 1 year are provided with milk, sugar and
salt. Provision is also made for ration for children from 12-
18 months and from 18-24 months. Extras may be ordered
by the Medical Officer. Female prisoners and their children
are in a separate ward, with its own toilets. This ensures
that there is no mixing between the children and the male
prisoners.
In Jammu & Kashmir, a special diet is available, as
prescribed by the Medical Officer. Supplements are also
provided to breast feeding mothers.
In Jharkhand, children are allowed to live with their
mothers up to the age of 5 years. Provisions are made for
special ration above and beyond the normal labouring ration
for nursing mother and for supplementary cow’s milk for
children under the age of 1 year not receiving sufficient milk
from the mother. Provision is also made for ration for
children from 12-18 months and from 18-24 months.
Health and clothing are taken care of by the Jail
superintendent. Toys and items of entertainment have been
provided in some jails.
In Karnataka, children are allowed to live with their
mothers up to the age of 6 years. Education is looked after
for by various NGO’s. When the children are to leave the jail,
they are handed over to the relatives or to some trustworthy
person, Agency or school.
In Kerala, a special diet and medical facilities are
made available as prescribed by the Medical Officer. Special
clothing can also be so prescribed.
In Lakshadweep, it was reported that there is no
undertrial prisoner lodged in jail along with her child and,
therefore, need for making arrangements for children along
with mothers is not felt necessary.
In Madhya Pradesh, children are allowed to live with
their mothers up to the age of 4 years or in special cases up
to 6 years by the approval of the Superintendent. There is
provision for special ration above and beyond the normal
labouring ration for nursing mother and for supplementary
cow’s milk for children under the age of 1 year not receiving
sufficient milk from the mother. Provision is also made for
ration for children from 12-18 months and from 18-24
months. For children who are leaving the jail, in
consultation with the District Magistrate the children are
handed over to the relatives or to some trustworthy person
as selected by the District Magistrate himself.
In Maharashtra, children are allowed to live with their
mothers up to the age of 4 years. They are to be weaned
away from their mothers between the ages of 3 to 4 years. A
special diet is prescribed under the Maharashtra Prison
Rules. Changes can be recommended by the Medical Officer.
Specific amounts of jail-made carbolic soap and coconut oil
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are to be provided for by the authorities. Garments are to be
provided as per the Maharashtra Prisons Rules. Two
coloured cotton frocks, undergarments and chaddies per
child have been prescribed per year. A nursery school is
conducted by ’Sathi’, an NGO in the female jail on a regular
basis. Primary education is provided for by ’Prayas’, a
voluntary organization in Mumbai Central Prisons. A small
nursery with cradles and other reasonable equipments is
provided in each women’s ward. Toys are also provided for
by the authorities. On leaving the jail, children are handed
over to the nearest relative, in whose absence to the officer-
in-charge of the nearest Government remand home, or
institution set up for the care of the destitute children under
the Bombay Children Act, 1948.
In Manipur, provision is made for special ration above
and beyond the normal labouring ration for nursing mother
and for supplementary cow’s milk for children under the age
of one year not receiving sufficient milk from the mother.
Provision is also made for ration for children from 12-18
months and from 18-24 months. The Superintendent is
entrusted with the responsibility of providing clothing for
children who are allowed to reside with their mothers.
In Meghalaya, children are allowed to live with their
mothers up to the age of 6 years. All aspects of the
children’s welfare are taken care of according to the Rules
under the State Jail Manual.
In Mizoram, children are allowed to live with their
mothers up to the age of 6 years. A special diet is
prescribed under the Rules of the Jail Manual. However, no
proper facilities for education or recreation exist.
In Nagaland, the provisions of the Assam Jail Manual
have been adopted vis-‘-vis facilities for women and for
children living with their mothers.
In Orissa, children are allowed to live with their
mothers up to the age of 4 years or in special cases up to 6
years by the approval of the Superintendent. A special diet
is available, as prescribed by the Medical Officer. Children
are provided with suitable clothing. On leaving the jail, in
consultation with the District Magistrate, the children are
handed over to the relatives or to some trustworthy person,
as selected by the District Magistrate himself.
In Pondicherry, a special diet is available as
prescribed by the Medical Officer. Play things, toys etc. are
provided to the children at Government cost or through
NGOs.
In Punjab, children under the age of one year are
provided with milk and sugar. Provision is also made for
ration for children from 12-18 months and from 18-24
months. Extra diet is available on the advice of the Medical
Officer. There is a play way nursery and one aaya or
attendant who looks after the children from time to time.
In Rajasthan, a special diet is available under the
rules of the Jail Manual. Special medical facilities are also
provided for as prescribed in the manual. Clothing and toys
are provided for by NGOs.
In Tamil Nadu, children are allowed to live with their
mothers up to the age of 6 years. A special diet and special
clothing are available as prescribed by the Medical Officer.
Children under 3 years of age are treated in the crhche and
those upto the age of 6 years are treated in the nursery. Oil,
soap and hot water are available for children. On leaving the
jail, in consultation with the District Magistrate, the
children are handed over to the relatives or to some
trustworthy person, as selected by the District Magistrate
himself.
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In Tripura, the diet of children is as per the
instructions of the Medical Officer. Medical care and
nursing facilities are available. Mothers accompanied by
children are kept separately.
In Uttar Pradesh, children are allowed to live with
their mothers up to the age of 6 years. A special diet is
available under the Rules of the Jail Manual. On leaving
prison, in consultation with the District Magistrate, the
children are handed over to the relatives or to some
trustworthy person, as selected by the District Magistrate
himself.
In Uttaranchal, food is provided as under the Rules of
the Jail manual. Education provided for by the Government,
which also makes arrangement for extra-curricular activities
such as sports.
In West Bengal, normal facilities are available and in
addition to that Inner Wheel club also runs a Homeopathic
clinic for children. A non-formal school is run by an NGO
for rendering elementary education to the children.
From the various affidavits submitted, it seems that
there were 6496 undertrial women with 1053 children and
1873 convicted women with 206 children.
On 23rd January, 2002, it was noted that three
matters were required to be dealt with by the Court: (1)
Creation of sufficient number of subordinate courts as well
as providing adequate infrastructure and filling up of the
existing vacancies; (2) necessary direction with regard to
dealing with the children of women undertrial
prisoners/women convicts inside jail; and (3) arrangement
required to be made for mentally unsound people who are
either undertrial prisoners or have been convicted. It was
then directed that the question of dealing with the children
of women undertrial prisoners and women convicts be
taken up first. That is how we have taken up this issue for
consideration, perused various reports, heard Mr. Ranjit
Kumar, Senior Counsel, who assisted this Court as Amicus
Curiae, Mr. Sanjay Parikh and other learned counsel
appearing for Union of India and State Governments. We
place on record our appreciation for the able assistance
rendered by learned Amicus and other learned counsel.
It may be noted that on 29th August, 2002, a field action
project prepared by the Tata Institute of Social Science on
situation of children of prisoners was placed before this
Court. Responses thereto have been filed by the Union of
India as well as the State Governments.
The report puts forward five grounds that form the basis
for the suggestion to provide facilities for minors
accompanying their mothers in the prison :
a) The prison environment is not conducive to the
normal growth and development of children;
b) Many children are born in prison and have never
experienced a normal family life, sometimes till the
age permitted to stay inside (four to five years);
c) Socialization patters get severely affected due to their
stay in prison. Their only image of male authority
figures is that of police and prison officials. They are
unaware of the concept of a home, as we know it.
Boys may sometimes be found talking in the female
gender, having grown up only among women confined
in the female ward. Unusual sights, like animals on
the road (seen on the way to Court with the mother)
are frightening.
d) Children get transferred with their mothers from one
prison to another, frequently (due to overcrowding),
thus unsettling them; and
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e) Such children sometimes display violent and
aggressive, or alternatively, withdrawn behavior in
prison.
Specific suggestions have been put forward vis-‘-vis
children once they reach the confines of the prison. The
minimum is the existence of a Balwadi for such children,
and a crhche for those under the age of two. The Balwadi
should be manned by a trained Balwadi teacher and should
have the facilities of a visiting psychiatrist and pediatrician.
A full-time nurse could also be made available.
Immunization should take place on a regular basis. If the
child is sick and needs to be taken outside the prison, the
mother should be allowed to accompany the child. The
Balwadi would provide free space, toys and games for
children. It can also organize programmes on mother and
child care, hygiene and family life for mothers. It has also
been suggested that these facilities should be located
outside, but attached to the prison. This would combat the
negative psychological impact of the prison environment
and expose the children to ’normal’ figures not found in the
women’s barracks. It is also suggested that specialized
clothing including winter-wear and bedding including
plastic sheets should be provided to children. Concerns
have also been raised regarding the issuance of a birth
certificate that mentions the prison as the place of birth of a
child born in prison. It is suggested that child’s residence
should be mentioned as the place of birth and not the
prison.
Emphasis has been placed on the diet of such
children. It recommends that a special diet be prescribed, as
per the norms suggested by a nutrition or child development
expert body such as the National Institute of Public
Cooperation and Child Development. The diet should be
standardized according to the age of the child and not
prescribed as uniform irrespective of the age of the child.
The special needs of the child should be kept in mind, for
instance, milk needs to be kept fresh which will not be the
case if it is handed out only once in the morning. Toned
milk may be required or boiled water may need to be
provided. For satisfying these needs and providing a
satisfactory diet may even require the creation of a separate
kitchen unit for children.
Several suggestions have been made vis-‘-vis the
judiciary, legal aid authorities, the Department of Women
and Child Development/Welfare and the Juvenile Justice
Administration (under the Juvenile Justice Act) and the
Probation Department in relation to the welfare measures
that can be taken for children of undertrial and incarcerated
prisoners, both living within and outside the jail premises.
The Union of India, in its affidavit, has pointed out
that it has taken several measures for the benefit of children
in general, including children of women prisoners in this
larger group. These measures include ’Sarva Shiksha Yojna’,
Reproductive and Child Health Programme, and Integrated
Child Development Projects and passing of the Juvenile
Justice (Care and Protection of Children) Act, 2000 for the
welfare of children in general.
Union of India also pointed out that the Swadhar
scheme has been launched by the Department of Woman
and Child Development with the objective of providing for
the primary needs of shelter, food, clothing, care, emotional
support and counselling to the women convicts and their
children, when these women are released from jail and do
not have any family support, among other groups of
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disadvantaged women.
Reference has already been made to the report of the
National Institute of Criminology and Forensic Sciences
which was forwarded to various States and Union
Territories in 2002.
Union of India also brought to the notice of the Court
that a Jail Manual Bill ("The Prison Management Bill, 1998")
had been prepared which, inter alia, deals with the plight of
women prisoners, under Chapters XIV and XVI. This Bill
was prepared with the laudable aim of bringing uniformity
to jail management across the country. It is important to
note that Chapter II of the Bill delineates various rights and
duties of prisoners. The rights include the right to live with
human dignity; adequate diet, health and medical care,
clean hygienic living conditions and proper clothing; the
right to communication which includes contact with family
members and other persons; and the right to access to a
court of law and fair and speedy justice. Clearly, the rights
of children of women prisoners living in jail are broader
than this categorization, since the children are not prisoners
as such but are merely victims of unfortunate
circumstances. It is also important to note that Section 33
of the Bill mandates the provision of a Fair Price Shop in all
prisons accommodating more than 200 prisoners. This shop
should also offer essential items for children of prisoners. In
addition, Section 60 (1)(d) provides for temporary or special
leave being granted to a prisoner who shows sufficient cause
to the State Government or the concerned authority. This
can be utilized to grant parole to pregnant women. It may
also be noted that Chapter IV of the Bill relates to release
and after care and Chapter XVI deals with special categories
of prisoners. Both these chapters have a special significance
when considering the rights of Children of Women
prisoners.
The Union of India noted that the "National Expert
Committee on Women Prisoners", headed by Justice V.R.
Krishnaiyer, framed a draft Model Prison Manual. Chapter
XXIII of this manual makes special provision for children of
women prisoners. This manual was circulated to the States
and Union Territories for incorporation into the existing jail
manuals. It is significant to note that this committee has
made important suggestions regarding the rights of women
prisoners who are pregnant, as also regarding child birth in
prison. It has also made suggestions regarding the age up to
which children of women prisoners can reside in prison,
their welfare through a crhche and nursery, provision of
adequate clothes suiting the climatic conditions, regular
medical examination, education and recreation, nutrition for
children and pregnant and nursing mothers.
Various provisions of the Constitution and statutes
have been noticed earlier which cast an obligation on the
State to look after the welfare of children and provide for
social, educational and cultural development of the child
with its dignity intact and protected from any kind of
exploitation. Children are to be given opportunities and
facilities to develop in a healthy manner and in a condition
of freedom and dignity. We have also noted U.N.
conventions to which India is a signatory on the Rights of
the Child.
This Court has, in several cases, accepted
International Conventions as enforceable when these
Conventions elucidate and effectuate the fundamental rights
under the Constitution. They have also been read as part of
domestic law, as long as there is no inconsistency between
the Convention and domestic law (See Vishaka v. State of
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Rajasthan [(1997) 6 SCC 241]). In Sheela Barse v.
Secretary, Children’s Aid Society [(1987) 3 SCC 50]
which dealt with the working of an Observation Home that
was maintained and managed by the Children’s Aid Society,
Bombay, it was said:
"5. Children are the citizens of the future
era. On the proper bringing up of
children and giving them the proper
training to turn out to be good citizens
depends the future of the country. In
recent years, this position has been well
realised. In 1959, the Declaration of all
the rights of the child was adopted by the
General Assembly of the United Nations
and in Article 24 of the International
Covenant on Civil and Political Rights,
1966. The importance of the child has
been appropriately recognised. India as a
party to these International Charters
having ratified the Declaration, it is an
obligation of the Government of India as
also the State machinery to implement
the same in the proper way. The
Children’s Act, 1948 has made elaborate
provisions to cover this and if these
provisions are properly translated into
action and the authorities created under
the Act become cognizant of their role,
duties and obligation in the performance
of the statutory mechanism created
under the Act and they are properly
motivated to meet the situations that
arise in handing the problems, the
situation would certainly be very much
eased."
True, several legislative and policy measures, as
aforenoted, have been taken over the years in furtherance of
the rights of the child. We may again refer to the Juvenile
Justice Act which provides for the care and rehabilitation of
neglected and delinquent children, under specially
constituted Juvenile welfare boards/courts. It provides for
institutionalization of such children, if necessary. Juvenile
children’s homes have been set up both by the State as well
as by NGO’s to house such children. In some states, Social
Welfare and Women and Child Development/Welfare
Departments have specific schemes for welfare and financial
assistance to released prisoners, dependants of prisoners
and families of released prisoners. Some States have
appointed Prison Welfare Officers to look after the problems
of prisoners and their families. In some other States,
Probation Officers are performing this task, apart from their
role under the P.O. Act, 1958.
However, on the basis of various affidavits submitted
by various State Governments and Union Territories, as well
as the Union of India, it becomes apparent that children of
women prisoners who are living in jail require additional
protection. In many respects, they suffer the consequences
of neglect. While some States have taken certain positive
measures to look after the interests of these children, but a
lot more is required to be done in the States and Union
Territories for looking after the interest of the children. It is
in this light that it becomes necessary to issue directions so
as to ensure that the minimum standards are met by all
States and Union Territories vis-‘-vis the children of women
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prisoners living in prison.
In light of various reports referred to above, affidavits
of various State Governments, Union Territories, Union of
India and submissions made, we issue the following
guidelines :
1. 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.
2. Pregnancy:
a. Before sending a woman who is pregnant to a
jail, the concerned authorities must ensure that
jail in question has the basic minimum facilities
for child delivery as well as for providing pre-
natal and post-natal care for both, the mother
and the child.
b. When a woman prisoner is found or suspected
to be pregnant at the time of her admission or at
any time thereafter, the lady Medical Officer
shall report the fact to the superintendent. As
soon as possible, arrangement shall be made to
get such prisoner medically examined at the
female wing of the District Government Hospital
for ascertaining the state of her health,
pregnancy, duration of pregnancy, probable date
of delivery and so on. After ascertaining the
necessary particulars, a report shall be sent to
the Inspector General of Prisons, stating the
date of admission, term of sentence, date of
release, duration of pregnancy, possible date of
delivery and so on.
c. Gynaecological examination of female prisoners
shall be performed in the District Government
Hospital. Proper pre-natal and post-natal care
shall be provided to the prisoner as per medical
advice.
3. Child birth in prison:
a. As far as possible and provided she has a
suitable option, arrangements for temporary
release/parole (or suspended sentence in case of
minor and casual offender) should be made to
enable an expectant prisoner to have her
delivery outside the prison. Only exceptional
cases constituting high security risk or cases of
equivalent grave descriptions can be denied this
facility.
b. Births in prison, when they occur, shall be
registered in the local birth registration office.
But the fact that the child has been born in the
prison shall not be recorded in the certificate of
birth that is issued. Only the address of the
locality shall be mentioned.
c. As far as circumstances permit, all facilities for
the naming rites of children born in prison shall
be extended.
4. Female prisoners and their children:
a. Female prisoners shall be allowed to keep their
children with them in jail till they attain the age
of six years.
b. No female prisoner shall be allowed to keep a
child who has completed the age of six years.
Upon reaching the age of six years, the child
shall be handed over to a suitable surrogate as
per the wishes of the female prisoner or shall be
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sent to a suitable institution run by the Social
Welfare Department. As far as possible, the
child shall not be transferred to an institution
outside the town or city where the prison is
located in order to minimize undue hardships
on both mother and child due to physical
distance.
c. Such children shall be kept in protective
custody until their mother is released or the
child attains such age as to earn his/her own
livelihood.
d. Children kept under the protective custody in a
home of the Department of Social Welfare shall
be allowed to meet the mother at least once a
week. The Director, Social Welfare Department,
shall ensure that such children are brought to
the prison for this purpose on the date fixed by
the Superintendent of Prisons.
e. When a female prisoner dies and leaves behind
a child, the Superintendent shall inform the
District Magistrate concerned and he shall
arrange for the proper care of the child. Should
the concerned relative(s) be unwilling to support
the child, the District Magistrate shall either
place the child in an approved institution/home
run by the State Social Welfare Department or
hand the child over to a responsible person for
care and maintenance.
5. Food, clothing, medical care and shelter:
a. Children in jail shall be provided with adequate
clothing suiting the local climatic requirement
for which the State/U.T. Government shall lay
down the scales.
b. State/U.T. Governments shall lay down dietary
scales for children keeping in view the calorific
requirements of growing children as per medical
norms.
c. A permanent arrangement needs to be evolved
in all jails, to provide separate food with
ingredients to take care of the nutritional needs
of children who reside in them on a regular
basis.
d. Separate utensils of suitable size and material
should also be provided to each mother prisoner
for using to feed her child.
e. Clean drinking water must be provided to the
children. This water must be periodically
checked.
f. Children shall be regularly examined by the
Lady Medical Officer to monitor their physical
growth and shall also receive timely vaccination.
Vaccination charts regarding each child shall be
kept in the records. Extra clothing, diet and so
on may also be provided on the recommendation
of the Medical Officer.
g. In the event of a woman prisoner falling ill,
alternative arrangements for looking after any
children falling under her care must be made by
the jail staff.
h. Sleeping facilities that are provided to the
mother and the child should be adequate, clean
and hygienic.
i. Children of prisoners shall have the right of
visitation.
j. The Prison Superintendent shall be empowered
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in special cases and where circumstances
warrant admitting children of women prisoners
to prison without court orders provided such
children are below 6 years of age.
6. Education and recreation for children of female
prisoners:
a. The child of female prisoners living in the jails
shall be given proper education and recreational
opportunities and while their mothers are at
work in jail, the children shall be kept in
crhches under the charge of a matron/female
warder. This facility will also be extended to
children of warders and other female prison
staff.
b. There shall be a crhche and a nursery attached
to the prison for women where the children of
women prisoners will be looked after. Children
below three years of age shall be allowed in the
crhche and those between three and six years
shall be looked after in the nursery. The prison
authorities shall preferably run the said crhche
and nursery outside the prison premises.
7. In many states, small children are living in sub-jails
that are not at all equipped to keep small children.
Women prisoners with children should not be kept
in such sub-jails, unless proper facilities can be
ensured which would make for a conducive
environment there, for proper biological,
psychological and social growth.
8. The stay of children in crowded barracks amidst
women convicts, undertrials, offenders relating to all
types of crimes including violent crimes is certainly
harmful for the development of their personality.
Therefore, children deserve to be separated from
such environments on a priority basis.
9. Diet :
Dietary scale for institutionalized infants/children
prepared by Dr. A.M. Dwarkadas Motiwala, MD
(Paediatrics) and Fellowship in Neonatology (USA)
has been submitted by Mr. Sanjay Parikh. The
document submitted recommends exclusive
breastfeeding on the demand of the baby day and
night. If for some reason, the mother cannot feed
the baby, undiluted fresh milk can be given to the
baby. It is emphasized that "dilution is not
recommended; especially for low socio-economic
groups who are also illiterate, ignorant, their children
are already malnourished and are prone to
gastroenteritis and other infections due to poor living
conditions and unhygienic food habits. Also, where
the drinking water is not safe/reliable since source of
drinking water is a question mark. Over-dilution will
provide more water than milk to the child and hence
will lead to malnutrition and infections. This in turn
will lead to growth retardation and developmental
delay both physically and mentally." It is noted that
since an average Indian mother produces
approximately 600 \026 800 ml. milk per day
(depending on her own nutritional state), the child
should be provided at least 600 ml. of undiluted
fresh milk over 24 hours if the breast milk is not
available. The report also refers to the "Dietary
Guidelines for Indians \026 A Manual," published in
1998 by the National Institute of Nutrition, Council
of Medical Research, Hyderabad, for a balanced diet
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for infants and children ranging from 6 months to 6
years of age. It recommends the following portions
for children from the ages of 6-12 months, 1-3 years
and 4-6 years, respectively: Cereals and Millets \026 45,
60-120 and 150-210 grams respectively; Pulses \026
15, 30 and 45 grams respectively; Milk \026 500 ml
(unless breast fed, in which case 200 ml); Roots and
Tubers \026 50, 50 and 100 grams respectively; Green
Leafy Vegetables \026 25, 50 and 50 grams respectively;
Other Vegetables \026 25, 50 and 50 grams
respectively; Fruits \026 100 grams; Sugar \026 25, 25 and
30 grams respectively; and Fats/Oils (Visible) \026 10,
20 and 25 grams respectively. One portion of pulse
may be exchanged with one portion (50 grams) of
egg/meat/ chicken/fish. It is essential that the
above food groups to be provided in the portions
mentioned in order to ensure that both
macronutrients and micronutrients are available to
the child in adequate quantities.
10. Jail Manual and/or other relevant Rules,
Regulations, instructions etc. shall be suitably
amended within three months so as to comply with
the above directions. If in some jails, better facilities
are being provided, same shall continue.
11. Schemes and laws relating to welfare and
development of such children shall be implemented
in letter and spirit. State Legislatures may consider
passing of necessary legislations, wherever
necessary, having regard to what is noticed in this
judgment.
12. The State Legal Services Authorities shall take
necessary measures to periodically inspect jails to
monitor that the directions regarding children and
mother are complied with in letter and spirit.
13. The Courts dealing with cases of women prisoners
whose children are in prison with their mothers are
directed to give priority to such cases and decide
their cases expeditiously.
14. Copy of the judgment shall be sent to Union of
India, all State Governments/Union Territories,
High Courts.
15. Compliance report stating steps taken by Union of
India, State Governments, Union territories and
State Legal Services Authorities shall be filed in four
months whereafter matter shall be listed for
directions.
In view of above, Writ Petition (Civil) No.133 of
2002 is disposed of.