2006 Supreme(SC) 349

2006(3) Supreme 546
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., C.K. Thakker & P.K. Balasubramanyan, JJ.
R.D. Upadhyay—Petitioner
versus
State of A.P. & Ors.—Respondents
Writ Petition (Civil) No. 559 of 1994
With
Criminal Appeal No. 69 of 2000
Civil Appeal No. 2468 of 1998
Writ Petition (C) No. 84 of 1998
SLP (C) No...../1998 (CC 5347/1998)
SLP (C) Nos. 14303-14305 of 1998
Writ Petition (C) No. 133 of 2002
All Decided on 13-4-2006
Counsel for the Parties :
For the Appearing Parties : Ms. Rachna Srivastava, J.S. Attri, AAG, Ranjit Kumar, (A.C.), K. Radhakrishan, Sr. Advocates, Ms. Binu Tamta (A.C.), Girdhar G. Upadhyay, Ms. Vinita G Upadhyay, Rajender Pd. Saxena, Manoj Swarup, Ms. Lalita Kohli, Ms. Mona Rajvanshi, Ms. Happy Saxena, Anubhav Kumar (for M/s. Manoj Swarup & Co.), Ms. Rachna Gupta, Sanjay Parikh, A.N. Singh, Ambhoj Kumar Sinha, S.W.A. Qadri, Ms. Sushma Suri, B. Krishna Prasad, A. Subhashini, Ashok Mathur, Anis Suhrawardy, B.B. Singh, Kumar Rajesh Singh, Gopal Singh, Rituraj Biswas, Guntur Prabhakar, H.K. Puri, Ujjwal Banerjee, S.K. Puri, Priya Puri, V.M. Chauhan, Ms. Hemantika Wahi, Ms. Sadhana Sandhu, Ms. Pinky Behera, Ms. D. Bharathi Reddy, P. Vinay Kumar, Ms. Sneha Bhaskaran, K.B. Rohtagi, Ms. Kamini Jaiswal, K. Ram Kumar, P. Parmeswaran, Ms. Gouri Karuna Das, Ms. Anu Gupta, Rajesh Singh, Kamal Kant Tripathi, Ms. Rani Jethmalani, (N/P), Kuldip Singh, R.K. Pandey (for R.S. Suri), Ms. Kamakshi S. Mehlwal, A. Mariarputham, Ms. Aruna Mathur (for M/s. Aruputham, Aruna & Co.), K.R. Sasiprabhu, D.S. Mehra, Ranjan Mukherjee, V.G. Pragasam, Ms. Shivani Thakur, Khawairakpam Nobin Singh, Radha Shyam Jena, K.K. Rai, Anil Shrivastav, Surabh Srivastava, Ms. Smita, Sanjay R. Hegde, Anil K. Misra, A. Rohen Singh, Rajiv Mehta, Subramonium Prasad, Gopalkrishnan, Abhay Kumar, Jay Kishore Singh, S.N. Jha, S.S. Shinde, V.N. Raghupathy, Mukesh K. Giri, Krishna Sarma, V.K. Sidharthan, Riku Sarma (for M/s. Corporate Law Group), Ajay Siwach, Sandeep Sharma, Manjeet Singh, Ms. Vivekta Singh, Harikesh Singh, T.V. George, (for Ms. Kavita Wadia (N/P), Ms. Suparna Srivastava, Ms. Deepti Snigh, Rajesh Srivastava, Ravi Prakash Mehrotra, Ms. Fizani Hussain, Garvesh Kabra, U. Hazrika, Satya Mitra, Ms. Sumita Hazarika, Ashok K. Srivastava, Shaiwal Srivastava, Saurabh Trivedi, Ms. Susmita Lal, Ms. Malvika Sarkar, Ms. Pinky Anand, D.N. Goburdhun, Rajesh Pathak, Ms. Anil Katiyar, Advocates.

IMPORTANT POINT
The Supreme Court has issued certain guidelines in relation to the welfare measures that can be taken for children of women undertrial and incarcerated prisoners, living within the jail premises.

Headnote:Constitution of India—Articles 14, 15, 21, 21A, 23, 39(f), 45, 46—Women undertrials—Issuance of directions for development of children who are in jail with their mothers who are undertrial prisoners or convicts—Jail environment being not congenial for development of such children—Obligation on State to look after welfare of children and to provide for social, educational and cultural development of children—Several legislature and policy measures have been taken over the years—There are 6496 undertrial women with 1053 children and 1873 convicted women with 206 children—In many respects, children of such mothers suffer consequences of neglect—Directions issued to ensure that minimum standards are met by all States and Union Territories vis-a-vis children of women prisoners living in prison.

       Held : 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.(Para 1)

       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.(Para 63)

       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 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 arrangement 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 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 creches 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 creche 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 creche and those between three and six years shall be looked after in the nursery. The prison authorities shall preferably run the said creche 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.

       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. (Para 65)