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

Introduction:

It is an undeniable harsh truth that the world cares less about what goes on behind bars once a person is arrested. The realm of prisoners’ rights is a recent addition to the field of human rights. Although the area has just started gaining momentum, it has a lot of ground to cover.[1] Out of the neglected prisoners, children of women prisoners who remain with them in custody form an especially vulnerable subset. It is vital to take appropriate steps with regard to the education for children of imprisoned mothers.

Historical Recognition of the Right:

In 1835, Lord Macaulay advocated the establishment of a committee to study and suggest prison reforms. The All India Jail Manual Committee set up by the Government of India after independence included subjects such as the care for children of women offenders. It aimed to provide compulsory education programs for prisoners, nurseries for children of women, etc.[2]

The landmark judgment of R.D. Upadhyay v. State of Andhra Pradesh, which studied the situation of children of incarcerated mothers, made a specific provision for prison reforms. It directed the incorporation of educational facilities in the prisons, particularly for this section of detainees.[3] Since this notable judgment, many states have employed teaching staff for these children and attempted to invest in their education.

Constitutional Evolution of Education for Children of Imprisoned Mothers:

Article 21 of the Indian Constitution guarantees the right to life and personal liberty.[4] The landmark judgment of Mohini Jain v. State of Karnataka expanded the meaning and scope of the phrase ‘life and personal liberty’ to include the realization of some other rights crucial for the individual’s overall development. This case was one of the earliest instances of recognizing the right to education as inherent to Article 21.[5]

The Convention of the Rights of the Child also recognizes the right to education in Article 28. The provision, for this purpose, requires State parties to make access to primary education free and compulsory for all children. The article further emphasizes achieving this right with equal access to opportunity for all.[6]

However, 86th Constitutional Amendment to add Article 21A to Part III of the Indian Constitution came only in 2002. Consequently, free and compulsory education became an enforceable and justiciable fundamental right.[7]

Gaps in Policy of Education for Children of Imprisoned Mothers:

The Right to Education Act (RTE Act) is consistent with the right stipulated in Article 21A.[8] The Apex Court’s judgment also emphasizes on providing education to children of incarcerated mothers. While it is a good initiative prima facie, it suffers from several conceptual and legal deficiencies in the application.

The RTE Act explicitly sets an age limit of 6 to 14 years for the provision of free and compulsory education. As per RD Upadhyay guidelines, no mother shall be allowed to keep a child who has completed the age of 6 years in prison, thus making the provision of education facilities stipulated in the RTE Act a mere ‘choice’ in the hands of the respective State governments. Article 45 of the Constitution, which forms a part of the Directive Principles of State Policy, stipulates that the State shall endeavour to provide education for children till they attain the age of 14 years.[9]

However, the unenforceable nature of the DPSPs creates a gap in policy concerning the education of children below six years residing in prisons. Even the Jail Manuals do not provide elementary education for such children.[10] The above observation makes it clear that the judgment is inconsistent with the constitutional amendments and the legislative developments in the application.

Challenges to Education of Children with Imprisoned Mothers:

Implementing RD Upadhyay guidelines remains a primal concern from a children’s rights perspective. The maintenance of prisons is a state subject due to the division of powers. The prisons across the country differ in size, location, infrastructure level, and quality of life. While some literature may applaud observations from prisons of well-known cities where considerable effort has been made, various tier-3 cities and small rural districts have not even seen the light of the day.[11]

The prison systems that implemented the education model suffer from a lack of teaching assistance compared to the number of children an instructor is supposed to handle. This reduces the focus and attention given to a particular child, thereby refuting the purpose of the policy change itself.[12]

Importance of Education for Children of Imprisoned Mothers:

The period of 0 to 6 years is the foundational formative time of a child’s life. When a child is born or brought up in captivity, shunned from the outside world, it is an underestimation, to say the least, that there is a massive psychological impact on their mental well-being. The vision of the Right to Education was reflected in the 86th Constitutional Amendment and the Right to Education Act.

It is important to note that the Right to Education does not refer to mere learning the alphabet or numbers. In the formative years from 0-6 years, education aims to enhance the scope for creative thinking and innovation and enable the children to engage and interact with their surroundings.

When the only world a child knows consists of broken walls and persons accused or convicted of dangerous offences, it is redundant to expect any amount of good quality education to result in any kind of change or reform. Children are often unaware of the concept of a home or the social structure itself, that other children see daily.[13]

It is crucial to distinguish education from literacy as the former undoubtedly has a broader interpretation. A comprehensive understanding of education must ideally encompass the right to play and leisure. It is a cardinal component of the development of intellectual abilities, soft skills, social interaction, general knowledge, and emotional well-being.[14]

Criticism of the Quality of Education:

The type of education which is present in the Indian prisons is a mere smokescreen and offers no positive impact in reality. The mere existence of teachers teaching the alphabet or numbers is, undeniably, not the object of the universal human right of education guaranteed in Article 26 of the Universal Declaration of Human Rights.[15]

Education is an asset that can transform into a powerful weapon to tackle major national concerns if guaranteed comprehensively. However, if the same is considered a mere mandate to be followed due to a force of a higher judicial precedent, it is a decay of economic, financial effort, and resources.

Conclusion:

The investment in improving access to the right to education is an essential public duty from which no State can absolve itself. Public investment in quality education directly impacts a country’s financial growth and economic standing at the international level.[16] With access to education under RTE restricted only to a privileged population, the country is trapping itself in a vicious cycle of social exclusion and discrimination, which will tremendously affect the social structure in the coming years.

It becomes an urgent need of the hour, undoubtedly, for India to prioritize universalization and uniformity of formal and non-formal education facilities in prisons for children in pursuance of the ratio of the Apex Court judgment. Moreover, civil society and independent researchers need to dive deeper into the study of the prison system to understand the intricate and inhumane issues and challenges faced by children below the age of 6 years.

[1] Vivek Narayan Sharma, Prisoners’ rights in India, THE TIMES OF INDIA (last accessed 22nd August, 2022 at 9:00 P.M), https://timesofindia.indiatimes.com/blogs/lawtics/prisoners-rights-in-india/

[2] ANIL BHUIMALI, LAW ENFORCEMENT AND HUMAN RIGHTS 67-69 (Madhav Books 2013).

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

[4] INDIA CONST. art 21

[5] Mohini Jain v. State of Karnataka, 1992 SCC (3) 666.

[6] Convention on the Rights of the Child, Article 28, 20 November 1989, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child

[7] INDIA CONST. art 21A

[8] The Right of Children to Free and Compulsory Education Act, 2009, No. 35 of 2009, Acts of Parliament, 2009 (India).

[9] INDIA CONST. art 45

[10] SUBHASH CHANDRA SINGH, RIGHTS OF CHILD 71-75 (Serials Publications 2007).

[11] Prison Reforms – Centre State Division, Ministry of Home Affairs, Government of India, 2016, https://www.mha.gov.in/MHA1/PrisonReforms/advisiory, (Last Accessed on 23rd August, 2022 at 10:30 P.M)

[12] Asha Bhandari, Women Prisoners and their Dependent Children: A Study of Jaipur and Jodhpur Central Jails in Rajasthan, 65 SOCIOL. BULL.  357, 367-370 (2016).

[13] Supra note 10 at 80

[14] DAVID MALCOLM, SOCIOLEGAL PERSPECTIVES ON RIGHTS OF CHILD 9-10 (Cyber Tech Publications 2013).

[15] Universal Declaration of Human Rights, (10th December 1948), Art 26, United Nations General Assembly

[16] KAILASH SATYARTHI, EVERY CHILD MATTERS 50-51 (Prabhat Paperbacks 2018).

Editor: Ashish Ranjan