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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.