Children of prisoners in general do not enjoy any special rights. Children's needs are not considered when a parent is sent to prison. When this happens the child's life might be turned upside dov n. Whether people who are arrested or stand trial are parents or not is not a big issue in criminal law. Also, given prison inmates' legal position, their family ties are scarcely recognised. For the public at large, prisoners in the first place are lawbreakers. It is difficult to picture them as mothers and fathers who might want to care for their children. So, the children are, in a way in double jeopardy: they lose out on being parented and they are confronted with stigma and neglect.
In India, children of imprisoned parents are not easy to classify as a group. Any attention on the topic has been raised by the honourable Supreme Court mandate which has in its judgement of 2006 given directions for care and protection of children of imprisoned mothers below six years. Interestingly, the larger group of older children of imprisoned parents (6-18 years) do not find mention in the judgement though they would fall within the category of children in need of care and protection under the purview of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Juvenile Justice (Amendment) Act, 2006.
As a whole, women prisoners only constitute a minority (5 %) of prison inmates but nevertheless, both mothers and fathers have children outside the prisons who are in difficult circumstances and need due care and attention. The children of imprisoned mothers often are split up and sometimes even left 'home alone.' Children of imprisoned fathers most of the time stay at home with their mothers, but in difficult and often poor circumstances. Complicating factors such as migration, parents who are addicted to drugs or alcohol, or parents who are violent or abusive are often mitigating. These problems may occur more often in the lives of children of imprisoned parents than 'normally,' but they certainly do not occur per definition.
Legally the position of children of imprisoned parents is quite opposite to, for example, the children of divorced parents, although from the perspective of the child in both cases he or she has nothing to do with the cause of separation. In family law, family life and the bond between parents and children is protected to a large extent. In criminal law the state interference in family life (by arresting and punishing the parent) puts no obligation on the state to create provisions and facilities to limit the damage of this interference and of the separation it causes on children above six years of age.
In spite of some of the measures available, rights of children of prisoners in the Indian context are still very vague. The shocking survey on children of women prisoners, conducted by the National Institute of Criminology and Forensic Sciences, Delhi, during 1997-2000, documents the conditions of deprivation and criminality in which children are forced to grow up, lack of proper nutrition, inadequate medical care, and little opportunity for education.
PRAYAS, a Mumbai based NGO has grouped the children of women prisoners as follows;
Presently, the Karnataka state has a total of 102 prisons of various classifications with an intake of 12383 male prisoners and 533 female prisoners. There are 19 children less than 6 years who are in the custody of their mothers which leaves the statistics of children outside only to our imagination.
All prisons situated in Karnataka fall under the following classes:
a. Central Prisons (8)
Location: Bangalore, Belgaum, Bellary, Bijapur, Gulbarga, Mysor, Dharwad and Tumkur.
Location: Bidar, Karwar,Madikere, Mangalore, Raichur, Shimoga, Chitrudurga, Bagalkote, Chamrajnagar, Tumkur, Haveri, Ramnagram, Chikballapur, Udupi and Koppal.
i) Male inmates: 1899
ii) Female inmates: 72.
c. District Sub Jails (4)
Location: Chickmagalur, Hassan, Kolar and Mandya.
i) Male imates: 855
ii) Female inmates: 39.
d. Special Sub Jails (2)
Location: Davengere and KGF.
i) Male inmates: 179
ii) Female inmates: Nil.
e. Taluka Sub Jails (70)
Location: Aland, Arasikeri, Aurad, Badami, Bilahongala, Chithamani, Devdurga Gadag, Gangavati, Gokak, Hadagi, Hospet, Hubli, Hanbad, Jamkhandi, Kadur, K.R.Nagar, Kolligela, Lingasugur, Manvi, Nanjunagud, N arasimharajapura, Sagar, Shorapur, Tarikeri, Tiptur, Virajpet, Yadgir, Yallapur, Sakaleshpur, Ankola, Athani, Bhatkal, Bhuntwal, Chickkodi, Chincholi, Hanagal, Hirekerur, Honnavar, Hukkeri, Hungund, Karkala, Kumta, Kundapura, Kundgola, Kustagi, Madugiri, Navalgund, Puttur, Raibagh, Ramadurga, Ranebennur, Rona, Saundati, Segam, Shigom, Shirahatti and Siddapur.
g. Open Air Jail Bangalore (1): 45 male prisoners.
The Karnataka State Commission for Protection of Child Rghts has received a complaints about the right to education and development of children of prisoners wherein the Commission have asked the prison authorities to refer children to district Child Welfare Committees (CWCs) for protection of the interests of these children. At Gulbarga, the Child Welfare Committee also held a sitting with prison inmates, following the Commission's recommendation. Thus, as far as children staying outside the prison are concerned, there are no specific guidelines for their protection. It is in this regard that the KSCPCR feels the need to come up with specific guidelines to secure the future of these children.
• Convention on Rights of Child, 1989
The legal base of this accountability of the state can be found in several human rights treaties, especially in the framework of the Convention on the Rights of the Child (CRC) , 1989. Under Article 2, children must not be discriminated against because of the status of their parents which can be interpreted to include imprisoned parents, Articles 3 talks about upholding the best interests of the child, Article 9 asserts the fact that a child must not be separated for his or her parents without their will and Article 12 gives children the right to express their views freely. This Convention in general, and in specific, obligates the States to support parents in the caring and raising of- their children.
Although there are no comprehensive statutes in this context, the following legal measures can be used to protect the rights of these children:
• Constitution of India, 1950
Article 12 and 13 which provide for the guarantee of equality and non-discrimination imply that children of prisoners are not to be discriminated against in matters concerning them like education, health and other public services. Article 21 which ensures right to life and liberty have been interpreted expansively by the Supreme Court to encompass positive claims including right to live with human dignity ,privacy and confidentiality, health and medical treatment and education. Government's obligation to ensure access to the same for these children also stems from this Article. Article 21 A was inserted under the 86th Constitution Amendment Act, 2002 to give explicit recognition to the right to free and compulsory education for all children between the age of six and fourteen years.
Directive Principles relevant to children include directions against abuse of tender age and exploitation of young persons, for securing work, education, welfare and assistance in situations of debility and destitution , and for the provision of care and education to young children.
The State's responsibility is enshrined under:
• The National Policy for Children, 1974
It lays down that the State shall provide adequate services towards children, both before and after birth and during the growing stages for their full physical, mental and social development. More so in the case of children without parental care especially children of prisoners, one can take the support of provisions which state that children who are socially handicapped, who have become delinquent or have been forced to take to begging or are otherwise in distress shall be provided facilities of education, training and rehabilitation and will be helped to become useful citizens. It is also stated that in organising services for children, efforts would be directed to strengthen family ties so that full potentialities of growth of children are realised within the normal family, neighbourhood and community environment and this can be deemed to include children of prisoners under its ambit.
• The National Plan of Action for Children, 2005
It commits itself to ensuring all the aforesaid rights to children up to the age of 18 years. It focuses on girl child, rescuing her from trafficking and exploitation and strong recommendation for a better and effective Act to stop child marriages. It has expanded the constituency of vulnerable children to also include children of prisoners. It works as comprehensive policy for withdrawing children from work and integrating them into full time school. For an effective implementation of the policy it sees the importance of adequate and specific child budgeting. The Plan recommended institutional mechanisms for monitoring child rights such as: establishing a National Commission for Protection of Child Rights, including the setting up of State Commissions.
• The Right of Children to Free and Compulsory Education Act, 2009
Puts the onus on the State to provide access to free and compulsory primary education to all children. The relevant clause in this context is that, which states that the State shall ensure that economic, social, cultural, linguistic, gender, administrative, location, disability, or other barriers do not prevent children from participating in and completing elementary education.
• Juvenile Justice (Care and Protection of Children) Act, 2000 and Amendment Act, 2006
The preamble of this Act states that this legislation has been drafted keeping in mind the standards prescribed in the Convention of Rights of Child, 1989 as mentioned above. Under this key legislation, children of prisoners fall within its purview of Section 2 (d) which defines "child in need of care and protection", as these children are generally left without any home or settled place or abode and without any ostensible means of subsistence and their parent or guardian is unfit or incapacitated to exercise control over the child . As is the case with children of prisoners, due to the imprisonment of their parents, they are forced to live without any settled place and any ostensible means of subsistence. Therefore, it is the responsibility of Child Welfare Committee (CWC) Children's Homes and Shelter Homes to care, protect, treat and help in the development of these children.
Further, the Act promotes reintegration of children in their family. In tte absence of a natural family, the statute sets out to provide a family like environment to children through adoption, foster care and sponsorship.
• The Commissions for Protection of Child Rights Act, 2005
The Commissions will set up under this legislation as a necessary step to protect children's rights as enumerated under the United Nations Convention on Rights of Child, 1989. The Commission mandates review, research and examine the status of child rights and advise reforms for the realisation of such rights . The rights of children of prisoners' fall under the ambit of its overarching mandate of inquiring and investigating incidents of child rights violation and recommending action including prosecution and grant of relief . State Governments are required to set up Commissions to execute similar powers and functions in their respective States .
• Integrated Child Protection Scheme, 2009
It is a vehicle for implementation of Juvenile Justice Act and protection of rights of children. Children of prisoners would fall within its mandate and are entitled to improved quality of protection set forth in its objectives viz, institutionalisation of essential services and strengthening of child protection structures at family and community level. It is based on cardinal principles of "protection of child rights" and "best interest of the child". Hence, its objectives are: to contribute to the improvements in the well being of children in difficult circumstances which would include children of prisoners, as well as to the reduction of vulnerabilities to situations and actions that lead to abuse, neglect, exploitation, abandonment and separation of children.
In Karnataka, the ICPS has been registered as a society and presently efforts are underway to recruit staff for the State Child Protection Unit (SCPU) and the District Child Protection Unit (DCPU) too. A budget of Rs. 3,81,67,000/- has been released by the Ministry of Women and Child Development (DWCD).
Supreme Court in 2006 in R.D. Upadhyay v. State of A.P. and Ors. SLP (C) Nos. 14303-14305/98: After thoroughly scrutinizing the issues affecting the children of under trial prisoners, due emphasis was given to the various provisions in the Constitution and laws governing the welfare and interests of the children and guidelines pertaining to pregnant women, child birth in prison, food, clothing, medical care, shelter, education, recreation, diet etc were issued. In addition to these the Court also said, " ... 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 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. 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. 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 ...
The Karnataka Prison Manual, 1978: It has a new chapter having guidelines for children less than 6 years old and these children staying with their mothers are provided with playing articles, educational kits and caretakers and all the Central Jails now have functional creches.
Keeping in mind the strength of inmates in all prisons in Karnataka (see Karnataka scenario), 12380 men and 518 women, the children outside the prisons must be in large numbers. It goes without explanation that most of them hailing from marginal sections of society would be in need of care and protection.
While no studies are available on the number of these children and support services available to them, the Commission is aware of initiatives by organisations like SO CARE and others where these children are provided with alternate care. However, the larger reciprocity of these children may be dispersed with the possibility of siblings being separated and therefore there is an urgent need to put in place a mechanism to promote and protect these children's rights since their parents may not be in any position to provide a protective umbrella.
The State has an obligation through its mechanisms to have guidelines and specific protocols for protecting these children's interests with the convergence of the prison administrations, Juvenile Justice System and the Department of Women and Child Development.
The arguments for ensuring regular safe contact of children with their imprisoned parents relate to encouraging with the possibility of children's right and maintaining a strong bond between the offender and his/her children. The benefits flow from the incentive for reform for the prisoner as investing on these children and linking them with their parents would be a huge motivating factor for these prisoners.
Keeping this in mind, some discussion points are given below which need to be further deliberated upon.
Nina P. Nayak,
Member, National Commission for Protection of Child Rights With Ms. Smriti Kaur
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