Prison walls, forgotten promises: A memento of justice for children behind bars

The Allahabad High Court in a recent verdict held,

"Prison walls cannot obstruct the onrush of the fruits of Article 21 for children."

This case revolves around a rejected bail application of an incarcerated mother of a five-year-old who is completely dependent upon their mother. While dismissing the mother's bail request, the High Court acknowledged the structural flaw that drives kids into jail, wherein their primary entitlements to esteem, healthcare and educational programs are neglected.

"The collateral damage inflicted upon a child as a result of denial of bail to their parent becomes most significant when the child has to reside in prison with the accused parent," said Justice Bhanot in Smt Rekha v. State of UP.

This is not the first time this has been observed.

In RD Upadhyaya v. State of Andhra Pradesh (2006), the Supreme Court delivered a ruling that was ostensibly a foundational framework for the care and treatment of incarcerated minors. The Court had established explicit guidelines that placed a strong emphasis on development initiatives, systematic medical care, schooling and specialised housing for such children.

Smt Rekha reveals the same basic flaw over twenty years later. These identical contentions, identical constitutional clauses and the similar open problems have resurfaced. Prison circumstances still deprive children of proper educational amenities, even though the Fundamental Right to Education under Article 21-A has been recognised as a basic right since 2009. As stated by Justice Bhanot,

“Neglect of rights of children who suffer from such default confinement in jail will reflect the failure of the State and inadequacy of the judicial process."

A frightening postscript to RD Upadhyaya (2006) constitutes a 2015 psychological research on young children of jailed women in the State of Uttar Pradesh. The research, which looked at youngsters in a particular jail in Uttar Pradesh, was carried out over ten years after the apex court's decision. The results show stark reality that run counter to the proposed changes.

According to the report, "children in the prison struggled through numerous deficiencies that included nutrition, medical care, housing, schooling. and recreation" [Sarkar & Gupta, 2015], despite the Court's clear directions in RD Upadhyaya. Even more astonishingly, it confirmed what ought to have been clear from the start: "a prison won't ever offer a family atmosphere...children who reside with incarcerated mothers are in no way different compared to other children."

The research also found that "kids who meet their parents who have separated on a frequent schedule exhibit greater emotional adaptation, greater I.Q. scores, and greater behavioural adjustment compared to those who do not."

Not only do the confines of incarceration hold the wicked, they also capture innocuous individuals, the overlooked and the young. For children left out there, time is a slow, cruel ticking clock of starvation, apprehension and being abandoned. Tata Institute of Social Sciences (TISS) project undertook a project called Prayas in Byculla Prison. The High Court of Allahabad asked Prayas to evaluate the circumstances of convicted and undertrial inmates in the State of Uttar Pradesh in Bachchey Lal v. State of UP (2014). The next study, which echoed the 2015 psychological study's results, presented an untenable scenario. The final rulings of the High Court reaffirmed the requirement of:

1. Special dwelling units for children of incarcerated parents.

2. Better dietary and health offerings.

3. A methodical framework for cooperation among probation officers, paediatric welfare organisations and prison administration.

4. Routine examinations to verify adherence to current legal requirements.

Prayas was instrumental in pushing for legislative amendments that resulted in the Galabhet Programme (2016), which allows for incarcerated mothers with their kids to interact in person instead of via dehumanising glass-partitioned visitation.

The Supreme Court broke the closed door around the circumstances concerning kids living in observation homes in Sheela Barse v. Children's Aid Society, decided in the year 1987. The children languished in squalor, congestion, as well as maltreatment while not being offenders or even being suspected of any offences. The legal battle started after journalist and activist Sheela Barse looked into the poor conditions of these particular Maharashtra houses and filed a writ petition. Without hesitation, the Court issued revision guidelines, emphasising that children should not be seen as helpless objects of pity, but rather as unique persons with freedoms that may be enforced.

Children do not choose where they are born. However, for an excessive amount of time, the judicial system permitted children to be imprisoned only because their mothers had been found guilty. When the Supreme Court rendered an impressive decision In Re: Right to Privacy of Adolescents (2023), the subject in question of who gets to determine their destiny came to the fore. Concerns over children living alongside parents imprisoned under the Protection of Children from Sexual Offences (POCSO) Act were the basis for the lawsuit. The Court decided that under Section 2(14) of the Juvenile Justice Act, these kids were required to be identified as needing safeguards and care. The ruling made clear that the State must step in if a parent or guardian is adjudged to be unsuitable to raise a kid with them.

"The State must step in if an adult with parental authority is determined to be unsuitable to care for the kid, even if the child has a parent or guardian. Basic requirements for safeguarding children constitute the responsibility of the Child Welfare Committee (CWC)," the Supreme Court said.

The most significant clause relates to education: Rule 339(f) requires children older than four to attend institutions not located inside prisons. More significantly, it eliminates parental choice; a parent who is jailed cannot refuse to send their kid to school. Even parents who are incarcerated cannot refuse their children an education. Consent refusal shall be null and invalid. Article 21-A and the Right to Education (RTE) Act are interpreted to include children within prison walls:

"Every child residing in jail with their parents will be compulsorily admitted to school," the clause declares.

Children continue to languish in prison cells, too young to comprehend what incarceration means. According to the figures, more than 1,650 Indian children reside with their mothers in jail, although their presence is seldom mentioned in the legal debate. TISS research shows a society in which children are behind bars and in which justice is unconcerned with those who are most in need.

According to the study, a great deal of these children experience psychological stress, malnourishment and developmental impairments. 27.5% of youngsters incarcerated in Maharashtra alone have been identified to be underweight. Although the UP Jail Manual, 2022 requires jails to include nurseries and crèches, the reality is otherwise.

Prayas argued for improved safeguards in a 2017 PIL in the Bombay High Court, which led to orders to preserve the property rights of women who had been arrested in order to save them from becoming homeless after their release. However, the pattern of systemic indifference persists.

The report emphasises an indisputable fact: these kids don't only grow up in jails; they also grow up forgotten. Children "have to stay in jail with their mothers, through no fault of their own," as Justice YK Sabharwal famously commented. It is a persistent inquiry, a subdued indictment of an institution that has not been able to provide them with another route.

Himanshu Mishra and Prakhar Jha are students at Faculty of Law, Jamia Millia Islamia.