Forgotten Victims of Crime Written By Jyoti Chowdhary

The first social relationship to which the child gets acquainted is family. A healthy family environment is the basis of the formation of a healthy society which in turn sets the base for the good social health of the nation. The role that an individual plays in society is very significant as every person has his own individual and social importance and he always contributes to the society in which he lives. But if he does not act according to the norms set by the state and the society, he is violating the law and for that, he is liable to be punished by the state. When he goes against the laws made by the state and gets punished, he is not the only person who undergoes the punishment but his family also has to undergo that punishment, though not in the prison but in society itself. The family pays for the acts done by one of the family members. Nowadays, the system of joint family has almost vanished. Most of the families are nuclear that is to say that just the mother, father and children live together.

When one of the parents is involved in any criminal activity and gets punished for the same, one parent is still outside the prison that has the responsibility to take care of the children. But the real problem arises when both the parents are involved in the criminal activity and get punished; then the present, as well as the future of the child, is at the stake which subsequently gets destroyed by no fault of his own but because of the fault of his parents. The state fulfills its duty by punishing its offenders but fails in its duty to protect the children of prisoners. The state should pay its full attention to such children so that their present and future can be secured and they should not get indulged in any of criminal activities to get their needs fulfilled. So, to make them responsible citizens of the nation, the state has to work for these innocent souls before they may get tainted by the cruelness of this world.

Invisible victims

The children of such parents who are imprisoned are often considered the ignored and invisible victims of the crime committed by their parents. Childhood is a phase of life when the child needs more attention and proper guidance in character building and that guidance, care, attention and love is given by the parents. It is the family from where the child gets their first moral education and society is the second such place which imbibes moral values in him. But when parents are in the prison or even when one of the parents is in prison, the pain that the family and the children of such a person go through is unbearable. In cases, where even one of the parents is undergoing punishment or is under trail, it is very difficult for the other parent outside to manage all the things by itself and at the same time, take care of the children and their vulnerable minds.

The situation worsens when both of the parents are in the prison, whether under trail or undergoing punishment, and the children are left outside at the mercy of God and the State. The State does not pay that much attention to these victims as is required. They are made victim by the state when they get ignored. The worst condition is of that child who is born in prison. He is also an invisible victim of the crime done by his mother. He is made to live in the prison with his mother till he attains a particular age. He is made to live in a restricted environment which hinders his overall development. Special attention needs to be given to such child by the state and all facilities which are necessary for his overall development should be provided. 

Effect on overall development of the child

The mind and the heart of the child are very tender. They need to be held cautiously and with due love and care. It is true that the foundation stone of the future of the child is laid down by the family. It is the family which shapes the personality of the child. But when any member of the family gets imprisoned, it leaves a very negative impact on the mind of the child. When any of the parents are sent behind the bar, no doubt, the whole family suffers but the impact of such incidents on the mind and life of the child is very severe. As he is a child; he is too young to understand crime, punishment and the criminal justice system. The only thing that makes sense to him is the separation of the parent, lack of love and trust and a broken family. This breaking down of the family structure can cause feelings of loneliness and abandonment. The incarceration of the parent has a very severe impact on the physical, social and psychological growth of the child. Financial hardships add to their misery.

The social stigma that gets attached to them makes them feel that they are also criminals. The child may for the rest of his life face these social and psychological pressures. It may hit down his self-confidence level. Such child also shows repulsive and aggressive behavior. There are all possibilities that he may get bullied at school or in society and may face problems in making friends; thereby developing trust issues. Parental relationship with the child also gets disturbed. It is the responsibility of the state to look forward for all possible ways to keep the mental health of these children healthy by providing proper counseling sessions. In case where one parent is there with the child outside the prison, counseling of that parent should also be done so as to know whether the parent is also in a healthy mental state to take care of the child. The state must also ensure that the child must get a proper education. In nutshell, it is the responsibility of all citizens of the nation in helping these invisible victims of crime in their overall development as children are the future of the nation.

Social status of children of incarcerated parents

Every person has his own personality and his behavior is totally dependent on that. It means that the child also has his own individual personality which may be different from his parent. He may not have the same criminal tendencies like his parent or may not have them at all. Moreover, the child should not be compelled in any way by society to pay for his parent’s deed. He is an individual human being who has his own perspective for life. Society needs to understand that he is not the actual culprit and he should be treated individually in accordance with his own acts. He should be accepted and given love and support by society because it is the love only that will prevent him from being a victim of crime done by his parent or parents. It needs to be understood that not everyone is alike and everyone’s individual self should be respected. Moreover, when a parent is in prison, society must help him in all possible ways; as today there are a number of such victims in society and it is not possible for the State to provide all facilities to them, so contribution on the part of the society in any way possible will be of great significance.

Position of the children kept in prison with their parent

Though it is very heartbreaking but the reality is that the condition of the children who are kept along with their parents in the prison is miserable. There is no doubt in it that the judiciary has played a very important role in providing the guidelines for these children but the reality at the ground level is far different. It is well understood that the prison is not a conducive place for the child to grow and to live but because of certain circumstances, he is in the prison. Children are not given such an environment in the prison to which they are entitled, so proper conditions should be provided by the prison authorities so that there will be no hindrance in the overall development of the child.

The prisons are serving as their limitations. They may consider the jail as their home and feel safe there but when placed in an actual environment in society, they may find it very hard to survive there.  Moreover, socialization pattern gets badly affected because of their experience in the prison with their parent. It is the responsibility of the state to provide for the proper rehabilitation of such children so that when placed in the actual society they should be able to adapt themselves in society as civilized citizen. Proper counseling sessions should also be held by the State to know their mental well-being and where there is any problem, proper guidance should be provided.  

Guidelines issued by the Supreme Court of India

When it comes to the rights of any individual, the Indian judiciary has always played a very prominent role. In the case of the rights of the children of the incarcerated parents, the judiciary has shown its concern and power and had issued guidelines for the same. In the case of R D Upadhyay v State of A.P. & Ors (AIR 2006 SC 1996), the Supreme Court of India has issued the following guidelines and it is evident from these guidelines how concerned the judiciary is about these children and their rights. The guidelines, in this case, are as follow:

  1. A child shall not be treated as an under trail or convict while in jail with his or her mother. It is also provided that the child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right[1].
  2. The Apex Court further held that before sending a woman, who is pregnant to jail, the concerned authorities must ensure that the said jail has all facilities as required for delivery and pre-natal and post-natal care of the child and of the mother[2].
  3. In case where a woman prisoner is found to be pregnant at the time of admission in the prison or after her admission in the prison, this fact shall be reported to the Superintendent by the lady Medical Officer and every necessary step regarding the health of the child and mother and the pregnancy should be taken and then, its report must be sent to the Inspectors General of the Prisons[3].
  4. The Apex court further provided that the gynecological examination of the female prisoners shall be done at the District Government Hospital. As per the pre-natal and post-natal advice given to the prisoner, proper care should be taken[4].
  5. The Supreme Court also provided that as far as possible and provided, she has a suitable option, she may be released on parole or temporarily so that the expectant prisoner can deliver outside the prison[5].
  6. In case, where the child is born in prison, this fact shall not be recorded on the birth certificate issued to the child. Moreover, when the child gets birth in prison, registration shall be made at the local birth registration office[6].
  7. The apex court also provided that as far as possible, all facilities for the naming rite shall be extended to the child who is born in prison[7].
  8. The Supreme Court also issued one very crucial guideline that is that female prisoners shall be allowed to keep their children with them in prison till they attain the age of six years. No child who is above six years of age is allowed to live in prison with his mother[8].
  9. In the case where a woman prisoner dies and leaves behind her child, it is the duty of the Superintendent to inform the District Magistrate to arrange for the proper care of the child[9].
  10. Moreover, children in prisons should be provided with adequate clothing[10].
  11. Keeping in view the calorific requirements of the growing child, State or U.T. Governments shall lay down dietary scales for children. Clean drinking water shall be provided, children should be properly vaccinated, proper food shall be given and separate utensil facilities should be provided[11].
  12. Clean and hygienic sleeping facilities should be provided to the mother and her child. Proper crèche and nursery facilities should be provided. The Apex Court also said that the child below the age of three years shall be allowed to the crèche and between three to six years shall be sent to the nursery[12].
  13. The child must be segregated from such an environment which is harmful to his development[13].
  14. The Court also said that the cases of woman prisoners whose child is in prison with their mother shall be given priority and decided expeditiously[14].

The Apex Court gave these guidelines after taking suggestions from almost all the concerned departments, NGOs, officials, experts and many more. Further, all the States and the U.T. are ordered to follow these guidelines and made further laws as required. The State Legal Services Authority was further directed to take necessary measures to inspect the prisons so as to ensure that the directions are being properly complied[15].

Position under Indian law

Constitution of the India is the law of the land. There are various Articles in it which provide for the rights of the vulnerable section of the society and these rights are contained in the Fundamental Rights. The Indian Constitution also provides for the Directive Principles of the State Policy which imposes an obligation on the State to make laws for the betterment of society.

  1. Article 14 of the Indian Constitution provides for equality. It means that all persons have the right to equal treatment in similar circumstances[16]. This Article also provides that like should be treated alike and the unlike should be treated unlike[17]. In the case of children of incarcerated parents in India, this valuable right is being violated because they are not being treated equally despite of the fact that they are equal with the other children whose parents are not incarcerated. They are innocent just like the other children but still they are being subject to inequality both at the hands of society and the state. They are looked down upon for the acts done by their parents. So, the State must work in this direction to protect the rights of the children of incarcerated parents.
  2. Another important Article which needs to be discussed under the Indian Constitution is Article 15(3) which provides that the State has the power to make special provisions for women and children and the court has well exercised this power in making special laws for the welfare of the children[18].
  3. Article 21 provides for right to life and personal liberty. It provides that the right to life does not merely mean the continuance of a person’s animal existence, but a quality of life[19]. And that quality of life cannot be ensured when the child is born in the prison as the atmosphere of the prison is not suitable for the overall development of the child. Thus, there is sheer violation of this crucial fundamental right of the children of the incarcerated parent.  
  4. Article 21A is a very important article and it proclaims that the State shall provide free and compulsory education to children below the age of six years[20]. So, it is the responsibility of the state to provide that basic environment to the child which would ultimately form the base of his upcoming life.
  5. Article 42 provides that it is the state which has the duty to make provisions for the just and humane conditions for maternity relief (imprisoned mother, here)[21].
  6. Article 45 obligates the state to endeavor to provide early childhood care and education for all children till they complete the age of six years[22]. The state has the responsibility to make such provisions which will be helpful in the overall development of the child and this provision of providing early childhood care and education will be helpful in safeguarding the basic rights of the children.
  7. Article 46 provides for the promotion of the educational and economic interests of the weaker sections of society[23].

International Instruments

The need to protect the rights and to promote the welfare of the children of the incarcerated parents was also felt at the international level and as a result of this need; various treaties, declarations and conventions have been formulated to protect the rights and interests of these invisible victims of crime which are as follow:

  1. Article 24 of the International Covenant on Civil and Political Rights provides that every child shall have the right to be protected without any discrimination as to race, color, sex, language, religion, national or social origin or birth[24]. It further provides for that every child shall be registered immediately after birth and shall have a name[25].
  2. In December 1992, India became a signatory to the United Nations Convention on the Rights of the Child to reiterate its commitment for the child and their cause. The objective of this convention is to give every child the right to life and development in a healthy environment[26].
  3. In the year 2010, UN Rules on the Treatment of Women Prisoners and Non-Custodial Sanctions for the Women Offenders were set which stipulate that if noncustodial alternatives to custody are available, they should be provided only in the case where the parent who is in prison has sole caring responsibilities[27]. It also provided that at all stages of the criminal justice system; children must be taken into account and should not be ignored[28]. Moreover, the best interests of the child should be taken into account in case of separation from the mother[29]. It is further provided that the child in prison with the incarcerated parent should not be treated as a prisoner and they must be allowed to experience life outside the prison[30].
  4. The UN Committee on the Rights of the Child, in 2011, held a General Day of Discussion for the best interests of these children at all stages of the criminal justice system[31].
  5. UN Human Rights Council also held discussions on the human rights of those children whose parents are sentenced to the death penalty or executed[32].
  6. Article 7 of the Universal Declaration of Human Rights declares that all are equal before the law and are entitled without any discrimination to equal protection of the law. India is a signatory to the this Universal Declaration of Human Rights and being a part of it, it has the responsibility to take care of the rights of the children of prisoners.

Comparative analysis

Different countries have different criminal justice systems; so are the rights provided to the prisoners and to the children of the incarcerated parents. A comparative study of India with the various nations of the world will give insight into the rights and conditions of the children of incarcerated parents. It is as follows:

  • Australia: In Australia, the child and the infants are allowed to live in the prison with their mother if the Administering Department is satisfied that this stay of the child in the prison is for his best interest but the condition in India is quiet different because what is in the best interest of the child is hardly considered as a particular age has already been set and the child has to stay there until he attains that age[33].
  • Canada: The Mother-Child Program is organized by the state in Canada but there is no such program made by the Indian Government. This step of the Canadian government is highly appreciable and the Indian government should adopt this in its criminal justice system[34].
  • China: China has a very strict approach with regard to the children of incarcerated parents. It does not at all allow the children of the incarcerated parent to live in the prison with the parent[35].
  • France: Incarcerated mothers are allowed to keep their children with them in prison until the child reaches the age of eighteen months but in India, this age is fixed at six years[36].
  • Japan: In Japan, the child is allowed to live in the prison with the incarcerated mother till his first birthday. This period can be extended up to the next six months from the first birthday but for that the permission of the head of the prison is to sought and if he feels that it is in the interest of the child to be kept in the prison with the mother, only then permission is granted and not otherwise[37].
  • Singapore: Under the Singaporean laws, if the child of the incarcerated parent is below the age of three years, then only he is allowed to live in the prison with the mother. And in the case where there is any need for his longer retention than this period of three years, the report of the medical officer is taken into account by the authorities[38].

These are examples of the few countries which have made provisions for the welfare of the child of incarcerated parents. In India, the guidelines have been issued by the Supreme Court of India for protecting the rights of the children of incarcerated parents but no separate legislations have been made by the Indian government for recognizing the rights of such children. As soon as possible, special legislation needs to be framed and implemented.

Conclusion

In the nutshell, it is the responsibility of the state to take proper care of the rights of the children of incarcerated parents. Moreover, the state must extend its helping hand for those NGOs which are playing a very positive role in transforming the lives of these children. Our prison system should be developed in the sense that it encourages the parents of such children to improve their social conduct so that when they came out of prison, they would not only be responsible parents but would also be responsible citizens. The state must also keep a record of such parents and children so that every possible help can be extended to them for adjustment in society. The state must from time to time check what is happening at the ground level. It is the moral and social responsibility of society to accept such children and recognize their rights.

The role that society can play in shaping the future of the children of incarcerated parents is prominent. In case of those children who are born in prison, proper medical facilities, nutrition, education, and the other things that are crucial in their overall development should be provided by the state in the prison as it is inherent as well as a legal right of the child to be given due upbringing and protection by the state as children are not only the assets but also are the future of the nation. They should be neglected and punished for the acts done by others. Their rights should be given and recognized and where there is a failure on the part of the state in providing and protecting the rights of the children of the incarcerated parents, the State should be held liable and compensation should be provided to them.

[1] R D Upadhyay v State of A.P. & Ors AIR 2006 SC 1996, India, available at: https://indiankanoon.org/doc/125861  (visited on April 30, 2019).

[2]  ibid.

[3]  ibid.

[4]  ibid.

[5]  ibid.

[6]  R D Upadhyay v State of A.P. & Ors AIR 2006 SC 1996, India, available at: https://indiankanoon.org/doc/125861  (visited on April 30, 2019).

[7]  ibid.

[8]  ibid.

[9] ibid.

[10]  ibid.

[11]  ibid.

[12]  ibid.

[13]  ibid.

[14]  ibid.

[15]  ibid.

[16] Dr. Narender Kumar, Constitutional Law of India 112, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[17]  ibid.

[18]  Dr. Narender Kumar, Constitutional Law of India 165, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[20]  Dr. Narender Kumar, Constitutional Law of India 319, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[21]  Dr. Narender Kumar, Constitutional Law of India 518, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[22]  Dr. Narender Kumar, Constitutional Law of India 521, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[23]  Dr. Narender Kumar, Constitutional Law of India 521- 522, (Allahabad Law Agency, Faridabad, 9th edn., 2015).

[24]  International Covenant on Civil and Political Rights, available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (visited on April 29, 2019).

[25]  International Covenant on Civil and Political Rights, available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (visited on April 29, 2019).

[26] R D Upadhyay v State of A.P. & Ors AIR 2006 SC 1996, India, available at: https://indiankanoon.org/doc/1258611/ (visited on April 30, 2019).

[27]  Children of incarcerated parents, India, available at: www.penalreform.org/priorities /justice-for-children/what-were-doing/children-incarcerated-parents/ (visited on April 29, 2019).

[28]  Children of incarcerated parents, India, available at: www.penalreform.org/priorities /justice-for-children/what-were-doing/children-incarcerated-parents/ (visited on April 29, 2019).

[29]  ibid.

[30]  ibid.

[31]  ibid.

[32]  ibid.

[33]  Devina Srivastava & Pradeep Kumar, “Legal Protection of Children of Incarcerated Parent- A Modern Day Necessity”, Volume no. 3, IJLLJS, 82-83 (2019).

[34]  ibid.

[35]  ibid.

[36]  ibid.

[37]  ibid.

[38]  ibid.

About Author:

  • Jyoti Chowdhary, BA.LLB(5 yrs), The Law School, University of Jammu, choudharyjyoti346@gmail.com

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