• Shreya Sinha


Anil Kumar Ranjan and Nitesh Singh Kushwaha, 2nd Year, IMS Unison University (School of Law), Dehradun

Whenever the parent of any children goes behind the bars, often it leaves an adverse impact on the life of innocents. The children of imprisoned parents have expressed that a stigma leaves them prone to insensitivity, ridicule and harassments from near ones. It can be seen that those children become the hidden victims of the act caused by their parents, sudden disappearance of the roof of affection of parents results in a psychological change in juniors. Children of the incarcerated parents are often neglected and largely unrecognized victims. Being a victim, new challenges and difficulties are introduced to them which led to behavioral and anti-social changes. As it was said that children are the unsettled sculpture which got shaped by their parents, children younger than 6 years are often carried by the mother and reside with their mother in jail. But they should not be treated as the victims or the accused that’s why the Supreme court took some effective steps in the case-law of the R.D. Upadhyaya vs. State of Andhra Pradesh and others[1], citing some recommendation of the All-India committee on jail reforms[2] such as children of the convicts must not be treated as the convicts, every prison must have a creche and nursery facility, the physical growth of the children must be monitored periodically and such other facilities. This change in the environment of the jail for the children is a must because surroundings are the basic things that affect the psychological growth and cognitive development of the newly developing mind. In spite of bettering the environment then also children of incarcerated parents lack social skills which can be seen as a flaw after being issued guidelines (R.D. Upadhyaya vs. State of Andhra Pradesh and others) for their betterment.

For welfare and development of children, Constitution of India recognizes several provisions which guarantees immunities against any sort discrimination and focuses on establishment of equality. There are several provisions majorly in the part III and part IV (Fundamental rights and Directive principle of state policy) besides these other provisions are also significant. Article 15 of the Constitution of India prohibits discrimination on the ground religion, race, caste, sex and place of birth, and same empowers the state to formulate special provisions for women and children. Article 21 grants the right to live a dignified life to everyone. Article 39(f) directs the state to check that children are provided with opportunities and facilities for the development in a healthy manner in the atmosphere of freedom and dignity, and state shall protect them against exploitation and against moral and material abandonment. Article 45 says that the State shall strive to ensure that every child must get early childhood care and early education until they reach the age of 6 years. Whereas Article 42 directs the state to make provision for securing just and humane conditions of work and for maternity relief.

In 2002, India attended the special session of the UN General assembly for the children, held in New York. India gave it a major importance and it was attended by several parliamentarians which are led by the minister of human resource development. The summit concerns for the protection and development of children and a way forward towards their enforcement and implementation.

According to the report of the National crime record bureau, there are only 4% of women in jail of all over the prison population. Statistically denoting that as per NCRB there are around 19,913 women prisoners across the country, of which 8% have their children in prison with them. Currently, an estimated 19000 children are living with their mothers in prisons across the globe, as per the report of Penal reform international.

Considering the last decade of India there are an average 9% of all women inmates have their children with them in jails and three out of four of these mothers were undertrial, as per the analysis of the NCRB data.

Out of total prisons there are only 31 jails for women in 15 Indian states and union territories while other states and UTs have no separate jails for women. Of the total women undertrial in 2019 around one in every 10 were living with their children in jails.

Aside the stats, concerning the problems, the Supreme Court of India laid down some golden rules for the welfare of the children of incarcerated parents and the women in the case of R.D. Upadhyaya vs. State of Andhra Pradesh and others, 2006.

● Pregnant women in prisons should be provided a facility to give birth outside the prisons, and the newborn must not have jail as the birth place in the birth certificate. A proper arrangement for the birth registration in the local office and must only the address of locality shall be mentioned.

● Children residing with their parents in jail must have access to proper nutritional food, shelter, medical assistance whenever required, educational and opportunity for extra curricular activity.

● Like outside, in jails children of inmates must be regularly examined by a lady medical officer to keep check on their physical growth and ensure timely vaccination.

● Children only under age of 6 can reside in jail with their mother. After attaining which the child must be handed over to surrogate as per wish of female inmate or child must be transferred to welfare institution in the same town/city and can reside until their mother is released or they become able to earn livelihood.

● There shall be a creche and a nursery near the prison compound for the women where women look after their children.

● Children staying outside the prisons away from the mother shall be allowed to meet them at least once a week and also state legal service authorities must take necessary measures to monitor the compliance with the instructions about children and female inmates.

Finally, arriving at consequence: there are several observances made out of provisions and guidelines, as interpretation of the article 21 said that every person has the right to live a dignified life, despite strong concern of judiciary over the jail reforms then also somehow children of incarcerated parents were being missed from their concern. Criticizing management of jails, according to the stats of NCRB, only 31 women jails are not sufficient. As analyzed, the human rights of the children are violated and they have no idea about it therefore it becomes the duty of authorities to guarantee the rights in the ambit of the Constitution of India. Children are innocent and their innocence must be protected. There is no lack of rules and regulations issued by the Supreme Court of India but matter is that there must be vigilant implementation of laws and guidelines otherwise the goal to save these innocent languishing behind bars will remain an unachievable dream.


[1] R.D. Upadhyay vs. State of A.P. and Ors. Writ Petition (Civil) 559 of 1994. 2006. [2] Mulla AN, Sharma CY. Report of the All-India committee on jail reforms 1980-83. New Delhi, Government of India press; 1983.

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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