When an offender is punished, there are some other lives that also get punishment. They are the family of that offender. The child who has just born or is in a tender age is symbolized as a criminal. His emotional, psychological, medical and educational strength vanishes and society throws them out. These vulnerable children are denied constitutional shelter. The matter of concern is that they remain an ignored class of the society. Punishment must be for the reforms; not for generating evils.
In the light of preserving justice, we tend to forget the loss behind it. Every time we put an accused behind bars, we are also disturbing his lives simultaneously. The family of an imprisoned person is the most vulnerable and cold-shouldered group in the society. The major crisis is faced by the children whose parents have been incarcerated. They lose their social, physical, emotional and cognitive development. They are the ‘hidden victims’ of the criminal justice system. Incarcerated simply means confined in jail and their children are called ‘Incarcerated Children’.
Up to the early 20th century, the functions of the State were (i) defense of the country and (ii) maintenance of law and order inside the country. In other words, the State was regarded only as a “Night Watchman Institution”. However, subsequently, the concept of the ‘Welfare State’ arose, according to which the State has not only to look after defense and law & order but also after the welfare of the people. This welfare state also includes the protection of the children of incarcerated parents.
Children of incarcerated parents are broadly divided into two categories: the one who accompany their mother (less than 6 years age) and the one who cannot accompany them (older than 6 years). Children above the age of 6 years live with their other parents, care taker or at some orphanage. Those less than 6 years of age spend their time in jail atmosphere. Research has been conducted in greater measure on children living with their mothers in the prison, largely due their visibility and access within a single place. On the other hand, children living outside have been an invisible population.
Dearth of Data: The courts do not inquire about personal information of the offenders. This is the reason why we lack specific data of incarcerated children.Government policies also do not target these groups in the absence of official information. No committee has been constituted in this regard and this can be termed as utter ignorance on the part of government.
Lack of Education and Healthcare Facility:A child of a tender age requires well balanced nutritious diet for the overall development which is missing in jail. Also in some jails, there is no arrangement of vaccination for kids. There is no proper systematic education for the kids and they all are made to learn with each other irrespective of their age. By this way, they do not grow their intellect.
Psychological Impact:The growth of a child largely depends upon the environment in which he is surrounded. When a child grows in a jail atmosphere, he has that impact of criminality which leads to drug addiction, gambling and other illegal activities. When they roam around in the outer world, they are ill-treated by the society which causes mental trauma. They are questioned on their parents and they also miss out job opportunities.
- Australia:The accommodation for primary care givers and their children should, wherever possible be domestic rather than custodial. While prisoners are responsible for the care of their children living in the prison, the Administering Department should take reasonable steps to ensure a safe environment for children.
- China:China law does not allow children to live with their parents in jail. However, it provides for a temporary bail in cases of pregnancy of female offenders.
- Japan: A mother can raise her child till the 1st birthday. The period can, however, be extended by 6 months if the officer feels medical requirements.
- Singapore: In Singapore, a child may be admitted with her mother for the first 3 years of his birth. After that period, medical officer will inspect the child’s growth and the period can be extended for maximum 1 years.
Situation in India: In Indian constitution, the fundamental rights guarantee every citizen right to live with dignity under article 21. This dignity means the human existence of a person and that he is fetched his basic needs in a righteous manner. The right to live with human dignity goes along with thebare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.
Now when a child of incarcerated parents is not provided such dignity, the question is directly on the validity of such rights. Ignorance to this issue directly raises question on the compliance of the constitutional spirit. Jail manuals also do not provide any adequate arrangements in this regard. Ignorance on this issue is the reason why we haven’t challenged the same in the courts very often.
The Hon’ble SC in the matter of R.D. Upadhyay v. State of A.P. provided certain guidelines for the child care and protection of such child with effective living standards. Some key features of guidelines are:
- Female prisoners can keep their children till the age of 6 years.
- Post the 6 years period, the child should be handed over to the custody of suitable guardian.
- Expenses of food, medical care and clothing shall be taken care by the state.
- There shall be crèches (for the child of 0-3 years) and nursery (for the child of 3-6years) in every jail premise.
- State Legal Authorities must periodically visit the jail premise to look into the implementation of the guidelines.
Despite the guidelines provided in the PIL of R.D. Upadhyay, the reality has not changed much. It will be no superlative statement that children of incarcerated parents are the ‘Orphans of Justice’. Our Indian Judicial System is adversarial in nature which means that one party wins at the cost of the other but providing justice and preserving justice are two different aspects. The one who has committed wrong gets punished is ‘providing justice’; no one is denied constitutional values be it wrong doer ‘preserving justice’.
No matter how much we emphasize on the protection of freedom and liberty if it is not beneficial for the citizens the same is valueless.We must aim at reforming criminals not giving birth to them.
Criminal Justice System has swallowed many people we loved. – Michael Williams
Francis C. Mullin v. Administrator, Union Territory of Delhi, AIR 1996 SC 1051
 Writ Petition (civil) 559 of 1994