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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.