The Caged Childhood: A detailed comment on the state of children of prisoners and way forward.

Published on: 22 March, 2025 23:58 IST

By- Gauri Dubey, Advocate High Court of Judicature at Allahabad

A child’s first years are meant to be filled with love, learning, and exploration- not the harsh confines of a prison cell. Yet, in India, hundreds of children live behind bars, not because they have committed a crime, but because their mothers are incarcerated. Stripped of the joys of childhood, these innocent lives grow up in a world surrounded by prison walls, with limited access to education, proper nutrition, or the social interactions necessary for their development.

Despite constitutional protections and international commitments, the reality for these children remains grim. They witness authority only through the lens of prison guards and hear lullabies muffled by the echoes of locked doors. The psychological and emotional toll of such an upbringing is immeasurable, leading to developmental delays, identity struggles, and a profound sense of isolation.

This article delves into the urgent need for reforms to ensure that no child suffers due to the circumstances of their birth. From examining the legal framework to exploring policy recommendations, we highlight why India must act decisively to safeguard the rights and dignity of its most vulnerable citizens- the children of incarcerated mothers.

Given the present living condition, jails are not the appropriate environment for a child’s development. Even if a child is residing with their mother in prison, then the State shall ensure that children enjoy their rights entitled to them, such as, necessary educational facilities, appropriate and wholesome meals and typical nurturing environment are available to them. These children live in isolation with no communication with the outside world and are forced to live within the prison, surrounded by other female prisoners. Under such circumstances, their mental growth and development tend to get affected.
Contact with the adult criminal justice system can be harmful to children and families. Living in custody among women accused or convicted of various crimes is far from normal for any child, especially those six years old or younger. The prison environment is not conducive to the holistic development of children. Many children born in prison never experience a normal family life, sometimes until they reach the age of six.
The confinement of children with their mothers also confines their psyche. Prolonged exposure to a negative and custodial environment severely affects their socialization patterns. Their only image of male figures is that of authoritative police and prison officials. They lack an understanding of a home as normal children do. The impact on their psyche is so profound that boys may mimic and speak like the female gender, having grown up only among women in the female ward. Unusual sights, such as stray animals on the road (seen on the way to court with their mother), can be frightening to them.

ISSUES FACED BY THE CHILDREN OF PRISONERS

• Emotional Strain: The sudden loss of a parent’s presence and their original homes leads to significant emotional distress.
• Financial Hardship: In the absence of the family’s primary earner, their standard of living deteriorates significantly. The children often miss meals, skip school, and struggle to pay for essentials like bills, rent, school fees, and uniforms. They are compelled to borrow money from friends and neighbors, promising repayment by their mother. In severe cases, there is no food at home due to either a lack of supplies or someone to prepare meals. This situation also impacts the children’s personal hygiene, leading to a drastic decline in their living conditions.
• Educational Disruption: Children tend to experience trauma due to their mother’s / father’s / parent’s arrest, the nature of the questioning directed at them, and the intimidating environment of police stations, prisons, and courts. Additionally, being left alone and facing threats from their surroundings, such as verbal abuse and physical harm from other inmates, danger from criminal elements, and fear of violence from adversaries, further exacerbated their trauma.
• Family Breakdown: Instances are observed where children, especially older ones, run away, or display aggression. Generally, there is weakening of family ties and an increase in independent decision-making, particularly among older siblings.
• Social Stigma: The decline in social status and the associated stigma leads to children withdrawing from society. Feeling isolated, they often become introverted, avoiding social interactions and gatherings.Health and Well-being: Both physical and mental health of children deteriorates without proper care and support.
• The children who come inside the prison miss many things like home food, outdoor games and the affection of their family members. They also miss their community from which they learn many things. It is observed that due to the prison environment, children have problems in their physical and mental development. They do not whole- heartedly participate in the crèche activities or they do not always show interest in playing, preferring to sometimes sit alone in a corner

CURRENT CONSTITUTIONAL AND LEGAL FRAMEWORK

1. The State must ensure that children, as the citizen of India, enjoy the fundamental rights guaranteed to them by the Constitution of India which includes: –

Article 21- Right to protection of life and individual liberty.

Article 39 (e) – Securing the tender age of children by ensuring that they are not abused or forced to enter avocations unsuited to their age or strength and provide opportunities.

Article 39 (f)- Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 15 (3)- Empowers the State to make special provisions for women and children.

Article 45- The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years.

Article 46- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and shall protect them from social injustice and all forms of exploitation.

Article 21 (a) Every child should get the basic right to education.

2. The Right to education was only the provision in the Directive Principles of State Policy which had a period of ten years within which the State had to fulfil the mandate to provide free and compulsory education. We now have the Right to Education under the fundamental rights, making it a justiciable right under Article 21a. The Right to Education Act, 2009, also known as RTE Act describes modalities of the importance of free and compulsory education for children aged between 6-14 years in India.

3. The Juvenile Justice Act, 2015 establishes Child Welfare Committees set up by The State Governments in districts in accordance with the provisions of the Act. The Committees have the power to dispose of cases for the care, protection, treatment, development and rehabilitation of the Children in Need of Care and Protection, as well as to provide for their basic Needs and Protection. The Committee consists of One Chairperson and four members and functions as a Bench

4. National Policy for Children 2013 asserts that-
“State shall take necessary measures to ensure out of school children such as child labourers, migrant workers, trafficked children, children of migrant labourers… children of women prisoners etc. are tracked, rescued, rehabilitated and have access to their right to education”

5. In 1992 India had also ratified the United Nations Convention on the Rights of the Child (UNCRC) binding on India to translate the said treaty into national and local legislation. Since then, various progressive and enabling laws such as-
Commission for Protection of Child Rights Act, 2005

were formulated and simultaneously amended with an objective to protect the rights and dignity of every child in India.

6. Many international treaties specify dimensions of the right to education and are mostly covered in-
The International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Rights of the Child (1989),

The Convention on the Elimination of All Forms of Discrimination against Women (1979) and;

The Convention on the Rights of Persons with Disabilities (2006).

recently Sustainable ambitions for education are captured in Sustainable Development Goal 4 (SDG 4) of the 2030 Agenda which also aims to “ensure inclusive and equitable quality education and promote lifelong learning opportunities for all” by 2030.1

7. The Government of India prepared the dossier of Model Prison Manual of 2016, focusing on modernizing the prison system with the help of computerization in order to strengthen the uniformity of rules and regulations of the prison administration. The Manual also apprehended the need for special arrangements for the women prisoners and their children and timely visits for better management, including provisions for diet, Education and Recreation for Children of women Prisoners.

CATEGORIZATION OF CHILDREN

The Juvenile Justice Act, 2015 recognizes two kinds of Children, one who has committed some offence (Child in Conflict with Law) and one who is a victim of crime or circumstances (Child in Need of Care and Protection).
A Child in Conflict with Law (CCL) is defined under section 2(13) of the Act as a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of offence.

A Child in Need of Care and Protection (CNCP) is defined under section 2(14) of the Act as a child who is:

• Found working in contravention of labour laws or begging or living on street
• Without any home or settled place of abode or ostensible means of subsistence
• Residing with a person who has injured, exploited or abused or threatened to do so or killed, abused, neglected or exploited some other child
• Mentally ill or physically challenged having no one to support him.
• Parent or guardian unfit or incapacitated
• Orphan or abandoned child or surrendered child
• Missing or run-away child or whose parents cannot be found
• Child who is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts
• Child who is found vulnerable or likely to be inducted into drug abuse or trafficking
• Child who is likely to be abused for unconscionable gains
• Victim of armed Conflict, civil unrest or natural calamity
• Child who is at imminent risk of marriage

The Act and JJ Model Rules, 2016 recognize that a CCL can also be a CNCP in the following provisions:

• Section 8(3)(g): The JJB can transfer to CWC, matters concerning CCL, stated to be in need of Care and Protection “at any stage”, there by recognizing that CCL can also be CNCP simultaneously, and there is Need for CWC and JJB to be both involved.
• Section 17(2): If child is not found to have committed any offence and is in need of Care and Protection, the JJB can refer the child to the CWC with appropriate directions.
• Rule 9(3), JJ Model Rules, 2016: A child who has been used by militant groups or other adults for illegal activities may be transferred to CWC after due inquiry, as a child in Need of Care and Protection.
• Rule 57(2), JJ Model Rules, 2016: A child alleged to have committed an offence under Section 78 (using a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance) can be transferred to the CWC by the JJB, if the child is Need of Care and Protection. intoxicating liquor, narcotic drug or psychotropic substance) can be transferred to the CWC by the JJB, if the child is Need of Care and Protection.

OBSERVATIONS OF THE HONBLE COURT

R.D. Upadhyaya vs State of Andhra Pradesh & Ors (Civil Writ Petition No. 559 of 1994) wherein the Court had issued guidelines for providing various facilities to the children of women prisoners

CONCLUSION AND WAY FORWARD

• The prison administration should aim to create an environment for children’s upbringing that closely resembles that of children outside prison. This includes providing airy rooms with adequate natural light, minimal security restrictions, outdoor play areas, and opportunities to socialize with peers outside the prison if not available within.
• The Inspector General must ensure that children with disabilities over the age of six, who are still in jail with their mothers, are immediately relocated to children’s homes as per the Juvenile Justice Act, 2015, where they can receive proper care and protection.
• A thorough screening should be conducted for children with special needs living with their mothers in prison to ensure they receive disability certificates and the benefits of a disability pension.
• With the support of the District Education Officer (DEO), it must be ensured that every child aged 6-14 years is enrolled in nearby government schools. No charges or expenses should be imposed on them that could hinder their ability to pursue and complete elementary education, as mandated by Section 3 of the Right to Education (RTE) Act, 2009.
• To ensure that every child between the age of 6-14 years is enrolled in nearby Government schools and no charge/expenses are levied on them which may prevent these children from pursuing and completing the elementary education (Section 3, RTE Act, 2009).
• Child Welfare Committee (CWC) may periodically visit the jails where children of women prisoners are residing.