Suo Moto PIL on Children of Women Prisoners (107/2004) at Bombay High Court: A Ray of Hope

Surekha Sale

Senior Social Worker at Prayas

Background

Prayas is a field action project of Tata Institute of Social Sciences, Mumbai, working in the field of criminal justice over the last 26 years. Prayas has been exploring the needs of rehabilitation of various groups which comes into contact with the criminal justice system such as male youth, women and children. Prayas started its work from the male and female sections of Mumbai Central Prison in 1990, by appointing two social workers in the field. Dr. Sanobar Sahni, currently Project Advisor, Prayas, who had done her PhD thesis women under trial prisoners, felt the need for full-time social work intervention in prisons and initiated the project. Prayas has been consistently working in the field and have developed good rapport with the officials and the system to work at the field and policy levels.

Prayas submitted a report on the situation of children of imprisoned mothers before the Supreme Court in a PIL, R. D. Upadhyay v/s State of Andhra Pradesh and Others, based on which the Supreme Court passed orders specifying guidelines for the care and protection of children of women prisoners living with their mothers in prison (till the age of 6 years) in 2006. However, Prayas suggestions pertaining to the situation of children of women prisoners left outside were not included in the guidelines issued by the SC.

Rationale for the Public Interest Litigation

Prayas has been constantly raising issues relating to children of prisoners in various forums, and has organised workshops and seminars with officials from the police, prison, women and child development and the judiciary. There seems to be an atmosphere of acceptance among the officials and authorities on the need for intervention for this group. However, Prayas suggestions have not yet found a place in the rules and regulations, for example, the Prison Manual, the Criminal Manual and the Police Manual. There is as yet no scheme being implemented for this group.

As a matter of strategy, Prayas had approached the Hon’ble Principal Judge, City Civil and Sessions Court, Mumbai, Ms. Shalini Joshi Phansalkar with a request that the sessions court may issue a circular to the lower courts (Metropolitan Magistrates’ courts) that they should take the interest in the matters of the children of women prisoners and issue orders from a humanitarian angle. It was prayed that the MM Courts should inquire with every woman under trial on her first appearance in court, regarding her children who needed care or protection, in the absence of family support. The matter was pending before her while she was elevated as the Registrar General of Bombay High Court.

With her assistance and support, the issue was tabled before the Juvenile Justice Committee at the High Court under the chairmanship of Hon’ble Justice Kanade. Prayas presented the issue of lack of support for children of women prisoners left outside and various suggestions to alleviate their situation. Taking into account the seriousness of the issue, Justice Kanade converted the matter in a Suo Moto PIL in 2014, and appointed Dr. Vijay Raghavan, Project Director, Prayas, as amicus curae in the matter.

Progress in the case

So far, the following important orders have been passed in the PIL:

1. The Court has asked the department of prisons, police, women and child development, social justice, health and minorities development to file a reply to the suggestions made by Prayas in the PIL.

2. The Court has asked the Home department to submit a report specifying the number of children of women prisoners left outside in the state of Maharashtra and in need of support.

3. The departments of prisons and women and child development have filed affidavits accepting most of the suggestions made by Prayas.

4. Anganwadis have been set up in 5 prisons by the department of women and child development for children of women prisoners living with their mothers in prison.

5. The suggestion made by Prayas to appoint social workers in prisons to look after the need of women prisoners and children of prisoners is under the active consideration of the home department. The department has recently signed an MoU with the Tata Trusts to appoint social workers in five Central Prisons and the Borstal School at Nasik for a three-year period as a pilot project, with financial assistance from the Tata trust, and Prayas as a knowledge partner.

6. The police have issued guidelines to police stations across the state to ensure that children of women prisoners in need of support be produced before the child welfare authorities so that their rights are protected.

We are hopeful that this PIL will pave the way towards the implementation of a series of measures that will protect the rights of children of women prisoners, both in prison and those left outside.