Founder of PVCHR and member of NHRC NGOs Core group Dr.Lenin Raghuvanshi brought the issue of children with mother in jail http://www.pvchr.net/2013/04/meeting-of-core-group-of-ngos-at-nhrc.html. The Chairperson, NHRC took note of issues raised in the Agenda items 6&7 and decided to write a letter to all the Chief Justices. Apart from the need for ensuring legal aide, he reiterated the implementation of guidelines of Supreme Court and NHRC in respect of conditions prevailing in jails.
Hand of Justice: Never seen by Children of Mothers in Prison
Dr. Archana Kaushik* & Ms. Gauri Sharma**
‘Children of prisoners’ are one of the most vulnerable and yet absolutely ignored categories of children. Often, they are referred as the ‘Orphans of Justice’, the ‘Cinderella of Penology’ (Shaw 1992; 1987) or the ‘forgotten victims of crime’ (Matthews, 1983). All the researches on the child psychology and child behavior believed that children are like wet cement; whatever falls on them makes a permanent impression. This makes everyone in the society and the state doubly responsible on how to plan the development of every child. However, given the state of Criminal Justice System in India and in particular, the atmosphere inside every prison we are here to believe that the early life experiences of children of prisoners’ are bound to have detrimental effects on their development. This paper gives a snapshot of the situation of children of prisoners in India. It also tries to look at the challenges faced by them and State and civil society response, if any, to address their concerns.
The incarceration rate for women is sharply rising, though, numerically, female offenders constitute much smaller proportion than their male counterparts. According to the ‘Crime in India Report’ (2011), the proportion of females among the arrested persons is only 4.3 percent. An upward trend is noted in female criminality over the period of 1990-2000. In 1996 only, as per the record of 10 States and 3 Union Territories women constitute more than 5 percent among the total arrested persons (National Crime Records Bureau, 1996). Increasing rate of incarceration of women is jeopardizing the lives of those who are naturally dependent on them – like their children. In other words, imprisonment of women is affecting rearing of their children.
Children of Prisoners caught in Numerical Fallacy
According to the ‘Prison Statistics India’ (2010) approximately 1700 children are living with their mothers inside the prison, out of which 428 women convicts stay with their 497 children and 1,063 women under-trials have their 1,166 children living with them. Further, 5 women detainees have 7 children with them. This included 19 other women prisoners live with their 35 children living in the prisons across India.
Official statistics claim that there are only 0.00058 percent children in the prison [1700 children out of total 158.8 million child-population aged 0-6 years as per Census 2011]. This figure does not represent the total number of children of prisoners. It represents only those children who are inside prisons with their mothers. A huge category of children of imprisoned mothers who are not living with them in jails but in the community, are left out. No statistics is available on the numbers of children left behind in family, with other care givers or who fend for themselves after the imprisonment of their parents or either of them. Additionally, the figure of nearly 1700 children may not be reliable as there are no regular monitoring mechanisms to account for these children. Besides the missing data, one main reason attributed to the indifference of the state on formulating policies and programmes for the children with imprisoned mothers is their smaller number. Complete marginalization in the development agenda make the children vulnerable to all forms of exploitation and is violation of their fundamental rights. What is of primary importance is to recognize and address these children as ‘children’ instead of labeling them as ‘children of prisoners’ which label them as offenders.
Thus, children of prisoners can be divided into two categories:
1. Children who live with their mothers inside the prison: they are either born inside the prison; infants being breast fed or are less than 5 or 6 years of age and have no other support in the community.
2. Children who are left behind in the community: they are those minors who are above the age of five years or so or have guardians/caretakers, other than imprisoned mothers, who can take care of them.
Children inside the prison
Child development professionals and psychologists maintain that the first five years are of critical importance in the holistic development of a child. When a child is born, his/her mind is a ‘tabula rasa’, a clean slate, on which his/her immediate environment leaves the maximum impression. Being in prison, in their formative years, the children are exposed to various deviant behaviors around them. Chattoraj (n.d), in his book, refers to children of prisoners’ as ‘a group of children who suffer silently within the four walls without committing any crime but still remain obscure and negligent in the eyes of the policy makers, social scientists and social workers.’ He delineates that prison conditions are characterized by diverse forms of deprivation, the most important ones being loss of freedom and complete seclusion from normal family environment, which affects the young and naïve minds of children.
Several other studies (Chattoraj, 2000; Nagar, 1992; Singh, Pandey, Kumar, Jain and Yadav, 1981; Singh, 1980) have reported that the children live in prisons amidst conditions that are not only inhumane but also impact their physiological, intellectual and psychological development. There is not much difference in the way a prisoner and a child in prison live. The children stay in cramped cells along with other convicts and under-trials. Thus, the children grow up in an environment where they see inmates fighting, abusing and constantly struggling for their survival and space.
Children who were born in prison or have been there since infancy are deprived of a normal childhood experience and exposure. Their cognitive growth and language development clearly lag behind the children who grow up in family environment. For them the concept of night is when they get locked up in their cells. They are unable to differentiate between animals and the sounds they make (Source: Observations of the author, Ms. Gauri Sharma, during her fieldwork placement at Tihar jail, New Delhi, 2008).
Chattoraj (2000), during his nation-wide study on children of prisoners finds that no suitable programmes have been planned for the bio psycho-social development of children who were being looked after mostly by their mothers and there was no trained staff in most jails to take care of these children. A few jails in some states had crèche to take care of children during day time. Also, largely, women prisoners with children were not being provided with extra meals. There were hardly any age-appropriate educational and playing facilities available for the children inside prisons.
During 2002, the Indian Council of Legal Aid and Advice filed public interest litigation in the Supreme Court, asking that state government formulate proper guidelines for the protection and welfare of children prisoners. The Honorable Supreme Court has passed its ruling to ensure the welfare of children of prison inmates. But the states are far from providing basic infrastructural and human resource facilities for child-birth, pre and postnatal care, availability of pediatricians, nurses to provide support care to the children and the pregnant, lactating mothers. Even the children are forced to eat the meal similar to other prisoners. The state’s failure to realize its responsibility and indifference has put these children at a higher risk of chronic health problems, resulting in possibility of stunted growth.
Children in the community
The other set of children of prisoners are those left behind in the community when their parent/s are imprisoned as they may have families to look after them or are more than five years old.
Their lives are disrupted completely due to separation from imprisoned mothers and fathers. When the father is in prison, there is usually a mother left at home to care for the children. But, when mother is inside the prison, the care giving to the child become totally uncertain and in rare case the father takes the responsibility to look after the child (Morash, Bynum and Koons, 1998). With mother’s imprisonment, often children feel isolated and they themselves begin to withdraw from society which can at times also result in anti-social behaviour. This raises a serious concern with long term implications, not only for children and their parents, but also for society as a whole. In today’s language, the concern is about what kind of “collateral damage” is being done to the children of these imprisoned parents (Hagan and Dinovitzer, 1999).
A number of children display symptoms of post-traumatic stress disorder, such as depression, anger and guilt. In 1999, Hagan and Dinovitzer observed that the trauma that these children experience due to an early separation from their primary caregiver and the difficult life that follows impact their mental health. Children of incarcerated mothers display other negative effects such as school-related difficulties, depression, low self-esteem, aggressive behavior and general emotional dysfunction. They also found that among the children of incarcerated mothers, 40 percent of boys between the age group of 12 to 17 were delinquent, while the rate of teenage pregnancy among female children was 60 percent. Murray (2005) too corroborated that the children can suffer a range of problems during their parent’s imprisonment such as: depression, hyperactivity, aggressive behavior, withdrawal, regression, clinging behavior and so on.
The general effects on a child who is separated from an incarcerated parent, especially the mother, is that the circumstances tend to interfere with the child’s ability to successfully master
developmental tasks and overcome the effects of such an enduring trauma of parent-child separation. Frequently, the children are often left with a care-giving arrangement that is inadequate, unreliable or irregular, causing further long-term damage to the development of the child’s character and personality. Because of these deprivations and traumas, children of incarcerated parents may be six times more likely than their counterparts to become incarcerated themselves, thus, resulting in intergenerational transmission of risks of imprisonment (Hagan and Dinovitzer, 1999).
‘Children of prisoners’, who are left behind in the community, are deprived of parental love and attention suffer from a greater sense of insecurity and inferiority. This also affects their personality as well as their overall development be it physical, emotional or intellectual.
Many times the stigma of being a prisoner’s child affects the child’s future as he/she is not only ‘labeled’ but also ‘ostracized’ in his/her living environment. Other children in the community and within the family are asked not to associate with ‘them’ by the elders. Prayas (2002) records some statements shared by the children - “Nobody greets us anymore”; “We don’t go for any marriage parties, or anywhere on festivals… no celebration, or no new clothes for festivals – we sit at home alone”. The labelling and stigma added to this makes it more traumatic for them to live. They are more vulnerable to crimes such as trafficking, abuse and so on and due to isolation, lack of guidance, protection and negligence from the community and other family members. Other effects of mother’s imprisonment on left behind children in the community are loss of income, school dropout, chronic malnutrition and heightened morbidity rate; many children have to start working to survive and some others become homeless and destitute (see: NIPCCD, 2010). Many renowned criminologists and psychologists, like Sutherland (1947) and Bandura (1969) maintain that crime is a learnt behavior. They point out that when patterns of criminal behaviour are exhibited in front of children, they become more prone to exhibit delinquent behaviour.
Judicial and State intervention
Recommendations by various committees like Justice Krishna Iyer Committee, Reports shared by Tata Institute of Social Sciences (TISS) and National Institute of Criminology and Forensic Sciences (NICFS) made a significant impact in highlighting issues related to children women prisoners. It resulted in the Honorable Supreme Court of India giving a guideline for children in prisons. However it excluded the children left by their mothers or parents who are in prison. During 2002, Indian Council of Legal Aid and Advice also filed a Public Interest Litigation (PIL) in the Supreme Court, for issuance of necessary guidelines to the State Governments for the protection and welfare of children of women prisoners.
All India Committee on Jail Reforms (1980-83) popularly known as Justice Mullah Committee and the National Expert Committees on Women Prisoners, headed by Justice Krishna Iyer Committee, 1997, in their respective observations, noted that, except in a few central jails, children of incarcerated women were callously placed in prisons.
Justice Mullah Committee has recommended that newly admitted women prisoners should be medically examined for pregnancy and pregnant women prisoners should be transferred to local maternity hospital for purposes of delivery. While registering the birth of a child in the jail, the place of birth should not be mentioned as ‘prison’, instead the name of locality be mentioned. It prescribes special diet for pregnant and nursing women prisoners and exemption from heavy work. The Committee also maintains that arrangement of crèche facility for children up to 5 years be made outside the main prison building. Voluntary woman organizations should be encouraged to look after women offenders and their children. Prison superintendent should take monthly review of children staying in prison and send a report to the appropriate authorities for necessary action.
Likewise, Justice Iyer Committee report observed that Jail rules developed locally under Prison Act accept the right of the prisoner mother to keep her child with her until 5-6 years of age. The rules also state that clothing and diet as prescribed will be given to the child in jail. It recommends that the rights and entitlements in terms of food, clothing, care, learning, etc., of the child in prison need to be separately recognized in law and explicitly stated. The child must be empowered with rights per se to facilities when in prison, including physical space, and relevant provisions must be introduced in the jail manuals.
However, within limited resources, sporadic attempts have been made by jail authorities to give children the best possible facilities across the country. This ranges from medical checkups for pregnant women, special diets for lactating mothers and babies (in Karnataka, Maharastra and Rajasthan), separate enclosures for lactating mothers (in Meghalaya), crèche facilities (Delhi, Vellore, Madurai, Lucknow, Kolkatta).
Unfortunately, prisoners are not a priority for any government because inmates are typically poor, illiterate and powerless, and because of the prevailing attitude that prisoners deserve what they get. There is, in fact, lack of political will that is hampering lives of children of prisoners.
National flagship schemes such as Sarva Shiksha Abhiyan, Integrated Child Development Services, etc., for children should cover children of prisoners in their ambit of scope.
The above analysis demonstrates that state of women prisoners and their young children in jails is far from protection of their rights. Their conditions in jails are pathetic despite legal provisions. There are no minimum facilities for over all development of minors in jails since very limited resources are available for correctional measures. The effects of incarceration can be catastrophic on the children and costly to the state. It is ironical that the justice system itself does injustice to the children of prisoners. There is no dearth of policies and programmes for the children in India, but this subset of children, hardly has any visibility in the eyes of policy makers. They suffer for years together for no fault of their own. Nonetheless, children of prisoners also have Fundamental Right like any other citizen-child of India.
* Archana Kaushik is Assistant Professor in Department of Social Work, University of Delhi, email@example.com
**Gauri Sharma is a Research Scholar, doing her M. Phil in Department of Social Work, University of Delhi, firstname.lastname@example.org
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