Vs. State of A.P. & Ors  Insc 204 (13 April 2006)
Sabharwal, C.K. Thakker & P.K. Balasubramanyan
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,
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.
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.
jail environment are certainly not congenial for development of the children.
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.
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 healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
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.
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.
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.
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.
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.
Government of India is implementing various schemes and programmes for the
benefit of the children.
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.
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 :
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.
No appropriate programmes
were found to be in place in any jail, for their proper bio-psycho-social
looking after was mostly left to their mothers. No trained staff was found in
any jail to take care of these children.
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.
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.
No separate or specialised
medical facilities for children were available in jails.
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.
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.
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.
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.
of the important suggestions emanating from the study are :
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.
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 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
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
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.
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.
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.
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.
State Governments and Union Territories were requested to consider the aforesaid suggestions for
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
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.
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.
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.
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
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 :
The number of
female prisoners (undertrial) together with the nature of offence for which
they have been detained;
Period of their
any, who are with the mothers lodged in the jail;
convicted female prisoners and whether any children are also lodged with such
convicts in the jails;
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 :
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.
Andhra Pradesh, milk is provided to the children 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
have been issued to provide sufficient study material to the children, as also
adequate playing material.
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.
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.
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.
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
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.
diets and vaccine for popular diseases are adequately provided for the
children. Clothing is also provided for.
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.
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 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.
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.
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.
Jammu & Kashmir, a special diet is available, as prescribed by the Medical
Officer. Supplements are also provided to breast feeding mothers.
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.
and clothing are taken care of by the Jail superintendent. Toys and items of
entertainment have been provided in some jails.
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.
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.
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.
amounts of jail-made carbolic soap and coconut oil 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.
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.
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.
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.
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.
the provisions of the Assam Jail Manual have been adopted vis-`-vis facilities
for women and for children living with their mothers.
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.
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.
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
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.
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
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.
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.
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:
sufficient number of subordinate courts as well as providing adequate
infrastructure and filling up of the existing vacancies;
direction with regard to dealing with the children of women undertrial
prisoners/women convicts inside jail; and
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
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.
report puts forward five grounds that form the basis for the suggestion to
provide facilities for minors accompanying their mothers in the prison :
environment is not conducive to the normal growth and development of 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);
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.
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.
transferred with their mothers from one prison to another, frequently (due to
overcrowding), thus unsettling them; and
sometimes display violent and aggressive, or alternatively, withdrawn behavior
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.
full-time nurse could also be made available.
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.
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.
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.
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.
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.
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 disadvantaged
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.
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.
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.
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
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 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:
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.
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 prisoners living in prison.
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 :
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.
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
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.
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.
Child birth in
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.
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.
As far as
circumstances permit, all facilities for the naming rites of children born in
prison shall be extended.
and their children:
shall be allowed to keep their children with them in jail till they attain the
age of six years.
prisoner shall be allowed to keep a child who has completed the age of six
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 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.
shall be kept in protective custody until their mother is released or the child
attains such age as to earn his/her own livelihood.
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.
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.
medical care and shelter:
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.
Governments shall lay down dietary scales for children keeping in view the
calorific requirements of growing children as per medical norms.
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.
utensils of suitable size and material should also be provided to each mother
prisoner for using to feed her child.
water must be provided to the children. This water must be periodically
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.
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.
facilities that are provided to the mother and the child should be adequate,
clean and hygienic.
prisoners shall have the right of visitation.
Superintendent shall be empowered 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.
recreation for children of female prisoners:
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
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.
In many states,
small children are living in sub-jails that are not at all equipped to keep
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.
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.
children deserve to be separated from such environments on a priority basis.
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 600 800 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 A Manual,"
published in 1998 by the National Institute of Nutrition, Council of Medical
Research, Hyderabad, for a balanced diet 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 45, 60-120 and 150-210 grams respectively; Pulses 15, 30 and 45
grams respectively; Milk 500 ml (unless breast fed, in which case 200 ml);
Roots and Tubers 50, 50 and 100 grams respectively; Green Leafy Vegetables 25,
50 and 50 grams respectively;
Vegetables 25, 50 and 50 grams respectively; Fruits 100 grams; Sugar 25, 25
and 30 grams respectively; and Fats/Oils (Visible) 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.
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.
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.
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
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.
Copy of the judgment shall be sent
to Union of India, all State Governments/Union Territories, High Courts.
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.
view of above, Writ Petition (Civil) No.133 of 2002 is disposed of.