Children Born in Prisons: Is Captivity in Best Interest?

Children Born in Prisons: Is Captivity in Best Interest?

Author: Tusharika Vig
V Year | Christ Law School, Bengaluru


The children born and raised in a nation are very crucial for its growth and development. These children are an asset to the country and the global community in the future. Despite that, children worldwide are largely vulnerable and deserted from the focus of state policies. Consequently, from a global economic standpoint, it becomes ignorant and alarming to neglect the interests and rights of the children born and raised in captivity[i].

The United Nations Convention on the Rights of the Child is a widely ratified and accepted international Convention.  It defines a ‘child’ as all persons who are under the age of 18 years[ii]. States have widely accepted this section of the population as a class requiring care and protection. It is because of the lack of maturity and emotional and physical development. In India, the Constitution serves as a guiding document to protect the underprivileged. Article 15 (3) of the Indian Constitution creates an exception to the provision for non-discrimination. It empowers the State to make special provisions for uplifting women and children[iii].

Reasons behind the poor condition of Children born and raised in captivity:

The prisons of India witness a significant gender imbalance. The Indian prisons constitute a meagre population of women. However, this sparse and negligible population often carries the most vulnerable section of the society to prison along with them, i.e., their children[iv].

There are no effective enactments to look after the need of children born in prison. As a result, the poor infrastructure of prisons fails to meet the requirements of children born and raised in captivity.

The Universal Declaration of Human Rights recognizes the Right to Life as a fundamental human right[v]. Even at the national level, Article 21 of the Indian Constitution guarantees every person the right to life and personal liberty[vi]. The mere allowance of young children in prison without guilt is a prima facie violation of human rights principles. However, in reality, there is a rationale behind their presence in prisons.

Rationale behind Captivity:

Most women trapped in the prison system of India belong to the socio-economically backward section of society. Most often, these women also have no family members or financial support. It compels them to take care of their children while they are serving their sentence. Their plight is such that they consider confining their children born in prisons or young children to the prison walls along with them as a more guaranteed path to ensure their children’s basic requirements of food, clothing, and shelter.

Unfortunately, the reality does not always meet their expectations. Many a time, women do not receive the opportunity to connect with their children after delivery. Naturally, it leads to postpartum depression and anxiety. Even children raised without the mother’s influence in their formative years also endure detrimental consequences on their physical and psychological well-being. [vii]

Further, the child’s sole responsibility has rested with the mother for ages as per the traditional gender norms, which regard a woman to assume the role of the primary caregiver with minimal contribution from the father. In this context, confining the child with the mother in the prison till the child surpasses the age of six seems to be a lesser evil for their best interests.

Courts’ Take on Children Born in Prisons:

R.D. Upadhyay v. State of Andhra Pradesh & Ors is a landmark judgment decided by the Apex Court of India, which examined the situation of children accompanying their mothers in prisons. The ruling highlighted various legislations and legal provisions of India that focus on the upliftment and development of children[viii].

However, in reality, no specific law deals with the protection of children born in prison or raised in captivity. The Jail Manuals and Prison Rules in place are also obsolete in effect. The landmark decision took a step forward to fill the lacuna by pronouncing guidelines for protecting children born and raised in captivity, thereby giving legal validity to the presence of children inside prisons with their mothers[ix].

Article 21 of the Indian Constitution provides the fundamental right to life and personal liberty except according to procedure established by law[x]. It is pertinent to note that while the exception of the ‘force of law’ applies to the women prisoners, it does not, in any case, extend to their children. Consequently, the children born in prisons are deprived of their life and personal liberty from a young age without any authority of law acting against them, making it a colossal infringement of Article 21.

Right to life enumerated in Article 21 does not only mean mere animal existence. It refers to a life with dignity[xi]. With the current situation of Indian prisons, which screams poor infrastructure, pathetic sanitary conditions, overcrowding and breeding of diseases, dignified life is a far-fetched dream for all children. Further, lack of uniformity in the standard of facilities across states denies equality of the minimum standard of living to the children born and raised in captivity. All these factors make the prison environment not conducive to housing children, especially in their formative years.

Existing Provisions for Children Born in Prisons:

The Convention on the Rights of the Child recognizes that a child should not be deprived of her liberty unlawfully. The imprisonment of children is a measure of the last resort under Article 37 of the Convention[xii]. India has also ratified the Convention making it an international obligation to ensure the realization of the human rights of all children under its jurisdiction. It puts a responsibility on India to align its domestic laws with the principles and standards of the International Convention[xiii].

Further, Article 39(f) of the Indian Constitution puts a duty on the State to enable a healthy environment for children to be free, live a life with dignity, and prevent exploitation[xiv]. However, the unenforceability of the Directive Principles of State Policy makes it convenient for the Centre and States to ignore the issue and legally justify their lack of affirmative action. 

Conclusion and the Way Forward:

The children of prisoners are invariably lost in the Indian criminal justice system. While the trial or proceedings for offences continue for decades, children’s rights are often forgotten and seldom covered in mainstream legal literature and news. The rights of the prisoners themselves also constitute an area that requires institutional structural change. Children, in particular, form the most disadvantaged rung of this population who continue to suffer the wrath of unfortunate circumstances.

More than 20 years since the ratification of the UNCRC, India has been unable to address all the issues related to children raised at an international level. One foundational principle of the UNCRC is also the involvement and participation of children in the subjects affecting them[xv]. This principle is vehemently ignored in the Indian context.

Children are neither involved in policies nor their voices are heard. Further, research and literature on children of incarcerated mothers specific to India are also virtually non-existent. This stems from the lack of available data and accurate statistics concerning persons living inside prison, making an efficient policy nearly impossible.

At the present time, the deplorable situation of children in prisons and the scarcity of focus on this subject by the Government calls for the association and involvement of civil rights organizations and independent researchers who might be able to empathize with children and bring this concern into the limelight. In addition, while deciding the sentences, the judges must consider the family condition and the ages of the accused’s children as mitigating factors to ensure the child is not left abandoned or deprived of a minimum standard of life.

[i] Subhash Chandra Singh, Rights of Child 69 (Serials Publications 2007).

[ii] Convention on the Rights of the Child, Article 1, 20 November 1989, available at

[iii] India Const. Art.1, cl. 3.

[iv] Asha Bhandari, Women Prisoners and their Dependent Children: A Study of Jaipur and Jodhpur Central Jails in Rajasthan, 65 SOCIOL. BULL.  357, 359-360 (2016).

[v] Universal Declaration of Human Rights, (10th December 1948), Art 3, United Nations General Assembly

[vi] India Const. Art. 21

[vii] Anoushka Singh, Children Residing in Prison with Their Parents, 3 INT’l J.L. MGMT. & HUMAN. 717, 718-719 (2020).

[viii] R.D. Upadhyay v. State of A.P., (2007) 15 SCC 360.

[ix] Supra note 1 at 72-75

[x] India Const. Art. 21

[xi] Kharak Singh v. State of U.P., (1964) 1 SCR 332.

[xii] Convention on the Rights of the Child, Article 37, 20 November 1989, available at

[xiii] Enakshi Ganguly Thukral, Every Right for Every Child 66-69, (Routledge 2011).

[xiv] INDIA CONST. Art. 39 (f)

[xv] Supra note 13

Editor: Ashish Ranjan

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