Author: Tusharika Vig
V Year | Christ Law School, Bengaluru
On grounds of public policy and human rights considerations, the practice of keeping children of imprisoned mothers within the four walls of prison has long attracted a very vocal section of critics. The Supreme Court’s historic ruling on the subject of children of women who were incarcerated said that a child could only be held in prison until the age of six. 
While the environment in jails is clearly unfavourable for children’s development, the other side of the coin does not provide a particularly optimistic picture either. In this scenario, it becomes pertinent to explore the socio-legal status of the population of children of imprisoned mothers released from prison after 6 years and the children who grow up outside the prison in the absence of their mothers.
‘Best interests’ of Children of Imprisoned Mothers:
Due to patriarchal gender roles, women have traditionally been responsible for caregiving. When a mother is imprisoned, as opposed to when a male figure is arrested, it has a direct and detrimental effect on young children. While the arrest of a male member of the family undoubtedly leads to a financial crisis as the absence of a major breadwinner, the influence of a mother on a child is of fundamental emotional value. The mother’s role is of a sole caregiver which directly and abjectly affects the children and their daily necessities. 
Article 3 of the Convention on the Rights of the Child recognizes the best interests of a child. All governmental and private social welfare institutions must recognize a child’s best interests as the primary and fundamental consideration.  India has upheld and advocated the best interest doctrine in several instances in various judicial pronouncements. In the tragic predicament of the children of incarcerated women in India’s criminal justice system, an alternative that adheres to the child’s “best interests” does not appear to exist.
The choice to let the kids stay with the jailed mother is strictly necessary when there is no other feasible option for the kids outside of the jail.  There is often no real practical ‘choice’ existing in that situation. Women lack real and actual alternatives to make rational decisions. 
The Indian Perspective on Best Interests:
The Prisons Rules and the RD Upadhyay Judgment’s criteria prohibit the children of imprisoned mothers to remain inside prisons after the age of 6. Children are allowed into state-run institutions after they turn six. The children remain there until either their mother is freed from custody or they are old enough to support themselves. 
The children are sent back to the same environment they were in as children. Keeping children in prison is “unsuitable” for their mental and physiological development. The Indian Criminal Justice System expects the children removed from their mother to make it on their own till the uncertain release of their mother. It becomes a question of whether the system in place keeps the children out of prison or cuts them off from the only familial and emotional thread existing in their life.
Living without a maternal influence:
Children younger than or older than the age of 6 years who are raised outside the prisons in absence of their mothers experience severe neglect, emotional abandonment, health and nutritional issues, family insecurity, psychological and intellectual risks, etc. The worst affected section of these children is the infants and children below the age of 6 years as they lack the opportunity to even develop an emotional bond with their mothers which has long-lasting impacts on their psycho-social wellbeing in the long run. The absence of the mother also creates a void of any maternal influence in a child’s life.
Children typically only accompany their mothers to the prison when family members, relatives, or guardians aren’t available to take care of the child. However, it is debatable whether entrusting the responsibility of the care of the child to a guardian or a particular relative is actually in ‘the best interests of the child’. The children run the risk of being exposed to negative influence, sexual abuse, substance abuse, forced child labour, and numerous other risks in the absence of a guardian. Moreover, violence becomes a part of their family and community life which goes beyond the house and has the potential to penetrate their schools and educational institutions.
The Conundrum of Visitation:
Article 9 of the Convention on the Rights of the Child protects the rights of children while their mothers are away. The States Parties must make sure that children are not taken away from their parents against their will unless a judicial authority deems it necessary for the child’s welfare. Children taken from their parents have a right to frequent visits in order to maintain their social ties. Furthermore, the provision stipulates that the State Parties must provide information to children regarding their parents who are in prison and information about their children’s whereabouts outside the prison to the detainee upon request unless the information would be detrimental to the child’s well-being.
The judgment allowing children to visit jails frequently to meet their mothers is rarely put into practice. Visitation does not exist as a matter of ‘right’. A jail superintendent schedules visitation after numerous requests and complaints. The Indian States have not uniformly adopted the Supreme Court Judgment, as it acts as a mere guideline and not as a norm.
The Allied Nuances of Visiting Imprisoned Mothers:
The issue of visitation rights carries several allied nuances along with it. The prisons have strict visitation timings which may overlap with the school timings of the children. Additionally, the lack of a number of prisons in a district may lead to a longer time taken to travel to meet detainees. The prisons in India often do not have separate child-friendly quarters where the women detainees can meet their children. Thus, the visitation experience can be extremely traumatizing and harsh for those children who have grown up outside the prison. The stigma associated with incarcerating a woman is greater than that of incarcerating a man. The stigma causes the young children to be turned against the mother or even restrict their visits to the prison.
Frequent visits to their imprisoned mothers have been reported to be beneficial for a child’s emotional stability. Studies have shown that visitation rights ensure establishment of maternal bond with the child which is mutually beneficial for both. Frequent visits may increase the chances of a pleasant reunion in the future after discharge.
Institutionally, children of female convicts are invisible in India. The custody of a detainee’s children is not given to any state instrumentality or any other person. The lack of any institutional or statutory framework governing guardianship of these children is an alarming human rights lacuna. The lack of a framework flagrantly violates international standards for children’s rights.
These children are often the ‘hidden victims’ who suffer the wrath of the crime irrespective of their parent’s culpability.  The Parliament of India must enact legislations to provide remedy to such children. Data must be collected and tracked consistently across all states so to ensure compliance with the guidelines. 
The rights of children in prison is a complex topic intertwined with other problems. The prison system requires structural changes and feminist reforms to ensure human rights of the hidden victims of prison.
 R.D. Upadhyay v. State of A.P., (2007) 15 SCC
 Anoushka Singh, Children Residing in Prison with Their Parents, 3 INT’l J.L. MGMT. & HUMAN. 717, 720 (2020).
 Convention on the Rights of the Child, Article 3, 20 November 1989, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
 Shreehari Pariath and Preety Acharya, Living With Imprisoned Mothers, Children Struggle For Normal Childhood, INDIA SPEND, Sep. 9, 2022, 5:00 PM), https://www.indiaspend.com/8-women-prisoners-children-live-with-them-heres-how-the-system-fails-them/
 Tarja Poso, Rosi Enroos & Tarja Vierula. Children Residing in Prison with Their Parents: An Example of Institutional Invisibility. 90 Prison J. 516, 526-527 (2010).
 R.D. Upadhyay v. State of A.P., (2007) 15 SCC 360.
 Supra note 2
 JOSEPH MURRAY ET AL, EFFECTS OF PARENTAL INCARCERATION ON CHILDREN, 13-15 (American Psychology Association 2014)
 Convention on the Rights of the Child, Article 9, 20 November 1989, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
 Supra note 4
 Supra note 2 at 721
 Lynn Sametz, Children of incarcerated women, 25 Social Work 298, 298-300 (1980).
 Supra note 5 at 528
Editor: Pratik Banerjee