Holding

Children residing in prison with their mother‑prisoners are not under‑trials or convicts and are entitled to a full set of rights, obligating the State to provide minimum standards of care and to amend prison regulations accordingly.

Summary

The Supreme Court examined the plight of children who reside in jails with their mother‑prisoners, whether under‑trial or convicted, and found that existing provisions were inadequate. Relying on constitutional guarantees (Articles 14, 15, 21, 23, 24, 39, 42, 45, 46, 47) and international child‑rights norms, the Court held that such children are not to be treated as under‑trials or convicts and are entitled to food, shelter, medical care, education and recreation. It issued comprehensive directions requiring States and Union Territories to provide prenatal and post‑natal facilities, allow mothers to keep children up to six years, ensure separate nutrition, clothing, health checks, creches, nurseries and protective‑custody arrangements, and to amend jail manuals within three months. The Court also directed State Legal Services Authorities to monitor compliance and ordered courts to prioritize related cases. The writ petition was disposed of after the directions were issued.

Issues considered

Whether children accompanying women prisoners are entitled to constitutional and statutory rights distinct from those of prisoners.
Whether the State is obligated to provide specific facilities for pregnant women prisoners and their children.
Whether jail manuals and rules must be amended to incorporate minimum standards for the care of such children.
Whether courts should give priority to cases involving women prisoners and their children.

Legislation cited

Constitution of Indias. Article 14, s. Article 15, s. Article 21, s. Article 23, s. Article 24, s. Article 39, s. Article 42, s. Article 45, s. Article 46, s. Article 47
Juvenile Justice (Care and Protection of Children) Act, 2000

Subjects

children's rightswomen prisonersprison reformconstitutional lawright to educationhealth carejuvenile justiceprison manual amendmentprotective custody

Judgment

,-
A R.D. UPADHYAY
v.
STATE OF A.P. AND ORS.

APRIL 13, 2006

B [Y.K. SABHARWAL, CJ., C.K. THAKKER AND
P.K. BALASUBRAMANY AN, JJ.]

Children of women prisoners lying in jail-lnspite of several legislative
and policy measures in furtherance of rights of child, such children found to
c require additional protection-In this light, necessary directions issued to .....
ensure minimum standards in prison regarding pregnancy; child birth; age
till which children could be kept there; food clothing, medical care and shelter;
education and recreation; and diet-All States and Union Territories directed
to comply with the directions and amend suitably jail Manual and/or relevant
D Rules, Regulations, instructions etc.-State Legal Services Authorities directed
to take necessary measures to periodically inspect jails to monitor compliance
of directions-Courts dealing with cases of women prisoners whose children
are in prison wilh their mothers, directed lo give them priority and decide
them expeditiously.

E Main issue before the Court in present proceedings was issue of
directions for the development of children who are in jail with their
mothers, who are in jail either as under trail prisoners or convicts. It was
noted that several legislative and policy measures had been taken over the
years in furtherance of the rights of the child. However, on the basis of
various affidavits submitted by various State Governments and Union
F
Territories, as well as the Union of India, it became apparent that children
of women prisoners who are living in jail required additional protection.
While some States had taken certain positive measures to look after the
interests of these children, but a lot more was found to be required to be
done in the States and Union Territories for looking after the interest of
G children. In this light, it became necessary to issue directions to ensure
minimum standards were met by all States and Union Territories vis-a-
vis the children of women prisoners living in prison. Accordingly the Court
issued following directions:
-
H 1132
R.D. UPADHYAYv. STATE OF A.P. 1133
- '\
1. A child shall not be treated as undertrial/convict while in jail with A
his/her mother. Such a child is entitled to food, shelter, medical care,
clothing education and recreational facilities as a matter of right.
[1154-C-D)

2.1. Before sending to jail a women who is pregnant, the concerned
authorities must ensure that the jail in question has the basic minimum B
facilities for child delivery as well as for providing prenatal and post natal
care for both, the mother and the child. [1154-D-EJ

2.2. When a woman prisoner is found or suspected to be pregnant
at the time of her admission or at any time thereunder the lady Medical
Officer shall report the fact to the superintendent. As soon as possible, C
arrangement shall be made to get such prisoner medically examined at
the female wing of the District Government Hospital for ascertaining the
state of her health, pregnancy, duration of pregnancy, probable date of
delivery and so on. After ascertaining the necessary particulars, a report
shall be sent to the Inspector General of Prisons, stating the date of D
admission, term of sentente, date of release, duration of pregnancy,
possible date of delivery and so on. [1154-E-G)

2.3. Gynaecological examination of female prisoners shall be
performed in the District Government Hospital. Proper pre-natal and post
natal care shall be provided to the prisoner as per medical adivce. E
[l154-H; 1155-A)

3.1. As far as possible and provided she has a suitable option,
arrangements for temporary release/parole (or suspended sentence in case
of minor and casual offender) should be made to enable an expectant
prisoner to have her delivery outside the prison. Only exceptional cases F
constituting high security risk or cases of equivalent grave descriptions
can be denied this facility. (1155-B)
3.2. Births in prison, when they occur, shall be registered in the local
birth registration office. But the fact that the child has been born in the
prison shall not be recorded in the certificate of birth that is issued. Only
the address of the locality shall be mentioned. [1155-C) G
3.3. As far as circumstances permit, all facilites for the naming rites
of children born in prison shall be extended. [1155-D)

4.1. Female prisoners shall be allowed to keep their children with
them in jail till they attain the age of six years. (1155-EJ H
1134 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 4.2. No female prisoner shall be allowed to keep a child who has
completed the age of six years. Upon reaching the age of six years, the
child shall be handed over to a suitable surrogate as per the wishes of the
female prisoner or shall be sent to a suitable institution run by the Social
Welfare Department. As far as possible, the child shall not be transferred
B to an institution outside the town or city where the prison is located in
order to minimise undue hardships on both mother and child due to
physical distance. (1155-F]

4.3. Such children shall be kept in protective custody until their
mother is released or the child attains such ages as to earn his/her own
C livelihood. (l 155-G I

4.4. Children kept under the protective custody in a home of the
Department of Social Welfare shall be allowed to meet the mother at least
once a week. The Director, Social Welfare Department shall ensure that
such children are brought to the prison for this purpose on the date fixed
D by the Superintendent of Prisons. (1155-H; 1156-AI

4.5. When a female prisoner dies and leaves behind a child, the
Superintendent shall inform the District Magistrate concerned and he all
arrange for the proper care of the child. Should the concerned relative(s)
be unwilling to support the child the District Magistrate shall either place
E the child in an approved institution/home run by the State Social Welfare
Department or hand the child over to a responsible person for care and
maintenance. (1156-BJ

5.1. Children in jail shall be provided with adequate clothing suiting
the local climatic requirement for which the State/U.T. Government shall
F lay down the scales. (1156-C-DI

5.2. State/U.T. Governments shall lay down dietary scales for
children keeping in view the calorific requirements of growing children
as per medical norms. (1156-DI

G

-
5.3. A permanent arrangement need to be evolved in all jails, to
provide separate food with ingredients to take care of the nutritional needs
of children who reside in them on a regular basis. (1156-EI

5.4. Separate utensils of suitable size and material should also be
H provided to each mother prisoner for using to feed her child. (1156-F)
j__
(

R.D. UPADHYAYv. STATEOFA.P. 1135
5.5. Clean drinking water must be provided to the children. This A
water must be periodically checked. (1156-F)

5.6. Children shall be regularly examined by the Lady Medical
Officer to monitor their physical growth and shall also receive timely
vaccination. Vaccination charts regarding each child shall be kept in the
records. Extra clothing, diet and so on may also be provided on the B
recommendation of the Medical Officer. (1156-B)

5.7. In the event of a woman prisoner falling ill, alternative
arrangements for looking after any children falling under her care must
be made by the .jail staff. (1156-H; 1157-A)
c
5.8. Sleeping facilities that are provided to the mother and the child
I
should be adequate, clean and hygienic. [1157-A)

5.9. Children of prisoners shall have the right to visitation.
[1157-A] D
5.10. The Prison Superintendent shall be empowered in special cases
and where circumstances warrant admitting children of women prisoners
to prison without court orders provided such children are below 6 years
of age. [1157-B)

6.1. The child of female prisoners living in the jails shall be given E
proper education and recreational opportunities and while their mothers
are at work in jail, the children shall be kept in creches under the charge
of a matron/female warder. This facility will also be extended to children
of warders and other female prison staff. [II57-C]

6.2. There shall be creche and a nursery attached to the prison for F
women where the children of women prisoners will be looked after.
Children below three years of age shall be allowed in the creche and those
between three and six years shall be looked after in the nursery. The prison
authorities shall preferably run the said creche and nursery outside the
prison premises. [1157-E) G
,_. 7. In many States, small children are living in sub-jails that are not
at all equipped to keep small children. Women prisoners with children
should not be kept in such sub-jails, unless proper facilities can be ensured
which would make for a conducive environment there, for proper
biological psychological and social growth. (1157-F) H
l 136 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 8. The stay of children in crowded barracks amidst women convicts,
' .
under trials, offenders relating to all types of crimes including violent
crimes is certainly harmful for the development of their personality.
Therefore, children deserve to be separated from such environments on a
priority basis. (1157-DJ

B 9.1. The child shall be provided at least 600 ml of undiluted fresh
milk if breast milk is not available. 'Dietary Guidelines for Indians-A
manual' published by the National Institute of Nutrition, Council of
Medical Research, Hyderabad, indicates a balanced diet for infants and
children ranging from 6 months to 6 years of ages. It is essential that food
C groups shall be provided in the portions mentioned in this manual to
ensure that both macronutrients and micro-nutrients are available to the
child in adequate quantities. (1158-D-E; 1158-Hl \

10. Jail Manual and/or other relevant Rules, Regulations,
instructions etc. shall be suitably amended within three months so as to
D comply with the above directions. If in some jails, better facilities are being
provided, same shall continue. (1159-Al

11. State Legislature may consider passing of necessary legislation~,
wherever necessary, having regard to what is noticed in this judgment.
[1159-BJ
E
12. The State Legal Service Authorities shall take necessary measures
to periodically inspect jails to monitor that the directions regarding
children and mother are complied with in letter and spirit. [1159-CI

13. The Courts dealing with cases of women prisoners whose children
F are in prison with their mothers, are directed to give priority to such cases
and decided their· cases expeditiously. (1159-D[

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 559 of
1994

G (Under Article 32 of the Constitution of India.)

WITH

Criminal Appeal No. 69 of 2000, Civil Appeal No. 2468 of 1998. Writ
Petition (C) No. 84of1998. SLP (C) .... ./1998 (cc 5347/1998). SLP (C) Nos.
H 14303-14305 of 1998. Writ Petition (C) No. 133 of 2002.
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1137
Ms. Rchana Srivastava, J.S. Attri, AAG; Ranjit Kumar, (A.C.), K. A
Radhakrishan, Ms. Binu Tamta (A.C.), Girdhar G. Upadhyay, Ms. Vinita G
Upadhyay, Rajender Pd. Saxena, Manoj Swarup, Ms. Lalita Kohli, Ms. Mona
Rajvanshi, Ms. Happy Saxena, Anubhav Kumar (for Mis. Manoj Swarup &
Co.), Ms. Rachna Gupta, Sanjay Parikh, A.N. Singh, Ambhoj Kumar Sinha,
S. W.A. Qadri, Ms. Sushma Suri, B. Krishna Prasad, A. Subhashini, Ashok B
Mathur, Anis Suhrawardy, B.B. Singh, Kumar Rajesh Singh, Gopal Singh,
Rituraj Biswas, Guntur Prabhakar, H.K. Puri, Ujjwal Banerjee, S.K. Puri,
Priya Puri, V.M. Chauhan, Ms. Hemantika Wahi, Ms. Sadhana Sandhu, Ms.
Pinky Behera, Ms. D. Bharathi Reddy, P. Vinay Kumar, Ms. Sneha Bhaskaran,
K.B. Rohtagi, Ms. Kamini Jaiswal, K. Ram Kumar, P. Parmeswaran, Ms.
Gouri Karuna Das, Ms. Anu Gupta, Rajesh Singh, Kamal Kant Tripathi, Ms. C
Rani Jethmalani, (NIP), Kuldip Singh, R.K. Pandey (for Mis. Arputham,
Aruna & Co.) K.R. Sasiprabhu, D.S. Mehra, Ranjan Mukherjee, V.G.
Pragasam, Ms. Shivani Thakur, Khawairakpam Nobin Singh, Radha Shyam
Jena, K.K. Rai, Anil Shrivastav, Surabh Srivastava, Ms. Smita, Sanjay R.
Hegde, Anil K. Misra, A. Rohen Singh, Rajiv Mehta, Subramonium Prasad,
Gopalkrishnan, Abhay Kumar, Jay Kishore Singh, S.N. Jha, S.S. Shinde, D
V.N. Raghupathy, Mukesh K. Giri, Krishna Sarma, V.K. Sidharthan, Riku
Sarma (for Mis. Corporate Law Group), Ajay Siwach, Sandeep Sharma,
Manjeet Singh, Ms. Vivekta Singh, Harikesh Singh, T.V. George, (for Ms.
Kavita Wadia (NIP), Ms. Suparna Srivastava, Ms. Deepti Singh, Rajesh
Srivastava, Ravi Prakash Mehrotra, Ms. Fizani Hussain, Garvesh Kabra, U. E
Hazarika, Satya Mitra, Ms. Sumita Hazarika, Ashok K. Srivastava, Shaiwal
Srivastava, Saurabh Trivedi, Ms. Susmita Lal, Ms; Malvika Sarkar, Ms. Pinky
Anand, D.N. Goburdhun, Rajesh Pathak and Ms. Anil Katiyar for the appearing
parities.

The Judgment of the Court was delivered by F
Y.K. SABHARWAL, CJ. Concerned by the plight of the undertrial
prisoners languishing in various jails in the country, various directions were
issued by this Court from time to time. Presently, we are considering mainly
the issue of directions for the development of children who are in jail with
their mothers, who are in jail either as undertrial prisoners or convicts. Children, G
for none of their fault, but per force, have to stay in jail with their mothers.
In some cases, it may be because of the tender age of the child, while in other
cases, it may be because there is no one at home to look after them or to take
care of them in absence of the mother. The jail environment are certainly not
congenial for development of the children. H
1138 SUPR'£ME COURT REPORTS [2006] 3 S.C.R.
' -
A For the care, welfare and development of the children, special and
specific provisions have been made both in Part III and IV of the Constitution
of India, besides other provisions in these parts which are also significant.
The best interest of the child has been regarded as a primary consideration
in our Constitution. Article 15 prohibits discrimination on grounds of religion,
B race, caste, sex or place of birth. Article 15(3) provides that this shall not
prevent the State from making any special provision for women and children.
Article 21 A inserted by 86th Constitutional Amendment provides for free
and compulsory education to all children of the age of six to fourteen years.
Article 24 prohibits employment of children below the age of fourteen years
in any factory or mine or engagement in other hazardous employment. The
C other provisions of Part III that may be noted are Articles 14, 21 and 23.
Article 14 provides that the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.
Article 21 provides that no person shall be deprived of his life or personal
liberty except according to procedure established by law. Article 23 prohibits
trafficking in human beings and forced labour. We may also note some
D provisions of Part IV of the Constitution. Article 39(e) directs the State to
ensure that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength.
Article 39(t)° directs the State to ensure that children are given opportunities
E and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation
and against moral and material abandonment. Article 42 provides that the
State shall make provision for securing just and humane conditions of work
and maternity relief. A1ticle 45 stipulates that the State shall endeavour to
provide early childhood care and education for all children until they complete
F the age of six years. Article 46 provides that the State shall promote with
special care the educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of
exploitation. Article 47 provides that the State shall regard the raising of the
G level of nutrition and the standard of living of its people and the improvement
of public health as among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.

Apart from the aforesaid constitutional provisions, there are wide range
H of existing laws on the issues concerning children, such as, the Guardians and
-
)--
)
1140 SUPREME COURT REPORTS [2006] 3 S.C.R.
' -
A best interests of children must be protected through combined action of the
State, civil society and families and their obligation in fulfilling children's
basic needs. National Charter has been announced with a view to securing for
every child inherent right to enjoy happy childhood, to address the root
causes that negate the health, growth and development of children and to
awake the conscience of the community in the wider societal context to
B protect children from all forms of abuse, by strengthening the society and the
nation. The National Charter provides for survival, life and liberty of all
children, promoting high standards of health and nutrition, assailing basic
needs and security, play and leisure, early childhood care for survival, growth
and development, prot·.:ction from economic exploitation and all forms of
.1buse, protection of children in distress for the welfare and providing
opportunity for all round development of their personality including expression
of creativity etc.

The National Institute of Criminology and Forensic Sciences conducted
a research study of children of women prisoners in Indian jails. The salient
D features of the study brought to the notice of all Governments in February
2002, are :

(i) The general impression gathered was the most of these children
were living in really difficult conditions and suffering from diverse
deprivations relating to food, healthcare, accommodation, education,
E recreation, etc.

(ii) No appropriate programmes were found to be in place in any jail,
for their proper bio-psycho-social development. Their looking after
was mostly left to their mothers. No trained staff was found in any
jail to take care of these children.
F
(iii) It was observed that in many jails, women inmates with children
were not given any special or extra meals. In some cases, occasionally,
some extra food, mostly in the form of a glass of milk, was available
to children. In some jails, separate food was being provided only to
grown up children, over the age of five years. But the quality of food
G would be same as supplied to adult pris".ers.

(iv) No special consideration was reported to be given to child bearing
women inmates, in matters of good or other facilities. The same food
-
and the same facilities were given to all women inmates, irrespective
of the fact whether their children were also living with them or not.
H •
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1141
(v) No separate or specialised medical facilities for children were A
available in jails.

(vi) Barring a few, most mother prisoners considered that their stay
in jails would have a negative impact on the physical as well as
mental development of their children.
B
(vii) Crowded environment, lack of appropdate food, shelter and above
all, deprivation of affection of other members.of the family, particularly
the father was generally perceived by the mothers as big stumbling
blocks for the proper development of their children in the formative
years of life.

(viii) Mother prisoners identified six areas where urgent il\lprovement
c
was necessary for proper upkeep of their children. They related to
foo.d, medical facilities, accommodation, education, recreation and
separation of their children from habitual offenders.

(ix) No prison office was deployed on the exclusive duty of looking D
after these children or their mothers. They had to perfor.m .this duty
alongside many other duties including administrative work, discipline
maintenance, security-related jobs etc. None of them was reported to
have undergone any special training in looking after the children in
jails.
E
Some of the important suggestions emanating from the study are :

(i) In many States, small children were living in sub-jails which were
not at all equipped to keep children. Women prisoners with children
should not be kept in such sub-jails, unless proper facilities can be
ensured which would make for a conductive environment there, for F
proper bio-psycho-social growth of children.

(ii) Before sending a woman in stage of pregnancy, to a jail, the
concerned authorities must ensure that particular jail has got the basic
minimum facilities for child delivery as well as for providing pre-
natal and post-natal care for both to the mother and the child. G
(iii) The stay of children in crowded barracks amidst women convicts
undertrials, offenders relating to all types of crime including violen;
crimes, is certainly harmful for such children in their personality
development. Children are, therefore, required to be separated from
H
1142 SUPREME COURT REPORTS (2006] 3 S.C.R.

A such an environment on priority basis, in all such jails.

(iv) A permanent arrangement needs to be evolved in all jails, to
provide separate food ".Vith ingredients to take care of the nutritional
needs of children to them on regular basis.

B (v) Children ofw6men prisoner should be provided with clothes, bed
sheets, etc. in multiple sets. Separate utensils of suitable size and
material should also be provided to each mother-prisoner for giving
food to her child.

(vi) Medical care for every child living in a jail has to be fully
C ensured. Also, in the event of a women prisoner falling ill herself,
alternative arrangements for looking after the child should be made
by the jail staff.

(vii) Adequate arrangements should be available in all jails to impart
education, both formal and informal, to every child of the women
D inmates. Diversified recreational programmes/facilities should also
be made available to the children of different age groups.

(viii) A child living in a jail along with her incarcerated mother is not
desirable at all. In fact, this should be as only the last resort when all
other possibilities of keeping the child under safe custody elsewhere
E have been tried and have failed. In any case, it should be a continuous
endeavour of all the sectors of the criminal justice system that the
least number of children are following their mothers to live in jails.

The State Governments and Union Territories were requested to consider
the aforesaid suggestions for implementation.
F
By filing IA Nos. I and 7, the attention of this Court has been drawn
to the plight of little children on account of the arrest of their mothers for
certain criminal offences.

I.A. No. I was filed by Women's Action Research and Legal Action
G for Women (WARLA W), through its program coordinator, Ms. Babita Verma
stating that more than 70% of the women prisoners are married and have
children. At the time of arrest of the women prisoners having children,
indiscriminate arrest is not confined only to women/mother prisoners but
>uch arrest is automatically extended to these children who are of tender age
H and there is no one to look after the child and take care of the child without
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1143
\

their mother. Such children are perforce subjected to a kind of arrest for no A
offence committed by them. Further, the atmosphere in jail is not congenial
for a healthy upbringing of such children. There are two non-Governmental
organizations (NGO's), namely Mahila Pratiraksha Manda! and Navjyothi
who are counsellors. Adjoining the jail premises at Delhi there is Nari Niketan
which is a women's reform home. Some of the children who are detained in
jail are sent to Kirti Nagar Children's home for their studies. The arrangement B
pertaining to the education and looking after of these children is not adequate.
To the best of the information of the applicant, there is no specific provision
or regulation in Jail Manual for facilitating the mother prisoners to meet the
children. It is for the family protection of these women prisoners including
their minor children that the trial period ofundertrials shall be minimised and C
a period of two years shall be fixed.

It was suggested that arrest of women suspects be made only by lady
police. Such arrests should be sparingly made as it adversely affects innocent
children who are taken into custody with their mother. To avoid arrest of
innocent children the care and custody of such children may be handed over D
to voluntary organizations which can assist in the growth of children in a
congenial and healthy atmosphere. Periodic meeting rights should be available
to the women/mother prisoners in order to mother the healthy upkeep of the
children.

A letter dated 8th March, 2000 written by a 6 years old girl child, E
studying in upper KG in a school at Bangalore, to Chief Justice of India
enclosing an article 'Dogged by Death in Jail' in a women's magazine dated
20th January, 2000 narrating plight of children in jail with their mothers, was
registered as IA No.7. The article, inter alia, notes that the fate of the women
undertrials is more pitiable because some of them live with their tiny tots F
whether born at home or inside the jail and that a visitor to jail is sure to see
a series of moving scenes.

The order dated 20th March, 200 I notes that the learned Solicitor General
shares the concern of the Court regarding the plight of the children in jail and
the submission that with a view to frame some guidelines and issue instructions, G
it would be necessary to first ascertain the number of female prisoners in
each of the jails, in each of the States/union Territories, the offences for
which they have been arrested; the duration of their detention and whether
children with any of those female prisoners are also lodged in jail. The Court
directed the States and Union Territories to disclose on affidavit the following: H
1144 SUPREME COURT REPORTS [2006] 3 S.C.R.

A (i) The number of female prisoners (undertrial) together with the
nature of offence for which they have been detained;
(ii) Period of their detention;

(iii) Children, if any, who are with the mothers lodged in the jail;

B (iv) Number of convicted female prisoners and whether any children
are also lodged with such convicts in the jails;
(v) Whether any facilities are available in the jail concerned for
taking care of such children and, if so, the type of facilities."

Various State Governments and Union Territories submitted reports
C which provided detailed answers to the aforestated questions. The following
is a brief conspectus of the reports filed :

[n the Andaman & Nicobar Islands, children are allowed to live with
their mothers up to the age of 5 years. A special diet is prescribed for children
D by the Medical Officer including proper vitamins and minerals. As far as the
future of the children is concerned, in consultation with the District Magistrate,
the children are handed over to the relatives or to some trustworthy person
as selected by the District Magistrate himself.

In Andhra Pradesh, milk is provided to the children every day with a
E protein diet for elder kids. Special medical facilities are available as prescribed
by the Medical Officer. Vaccines like Polio etc. are provided at regular
intervals. Education is also provided.

In Assam, children are allowed to live with their mothers up to the age
of 6 years. Literary training is provided to small children who are lodged
F with their prisoner mothers. Lady teachers are also present. Instructions have
been issued to provide sufficient study material to the children, as also adequate
playing material. As for their future, in consultation with the District
Magistrate, the children are handed over to the relatives or to some trustworthy
person as selected by the District Magistrate himself.

G In Bihar, children are allowed to live with their mothers up to the age
of 2 years and up to 5 years in special cases where there is no other caretaker
for child. Provision is made for special ration above and beyond the normal
labouring ration for nursing mother and for supplementary cow's milk for
children under the age of one year not receiving sufficient milk from the
H mother. Provision is also made for ration for children from 12-18 months,
l-
1

R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.) 1145
. I

and from J8-24 months or as specified by the Medical Officer. Health and A
clothing facilities are provided by the Governmen,t. Toys and other fonns of
entertainment are also available in some jails.

In Chandigarh, a special diet is provided for. Medical facilities are also
present.

- In Chhattisgarh, children are allowed to live with their mothers up to
the age of 6 years. Normal food and additional milk is provided. Polio drops
are provided on pulse polio day. Medical treatment is done by full time and
B

part time doctors present in the jail. Children are sent outside for expert
medical treatment and advice if required. NGO's have provided for clothes.
Inside ·the jail, a child education centre is being run so that they develop C
interest in education and may learn to read and write. TV and fans for the
female prisoners and their kids have been provided by some social service
organizations, as also sports and recreation material, swings and cycles.
Children are taken to public parks and for public functions to get acquainted
with the outside world. After the age of six, these children are sent to the D
local 'children's home', where their primary education starts. Female children
are sent to the Rajkumari Children's Home at Jabalpur where there is adequate
arrangement of education.

In Delhi, children are allowed to live with their mothers up to the age
of 6 years. A special diet inclusive of 750 gm milk and one egg each is E
provided to children in jail. Proper diets and vaccine for popular diseases are
adequately provided for the children. Clothing is also provided for. Children
above 4 years are taught to read and write. They are prepared for admission
to outside schools. Sponsorships for the funding of the children education is
provided for by the CASP (Community Aid Sponsorship Programme). Two F
NGO's by the name of Mahi la Pratikraksha mandal and Navjyoti Delhi Police
Foundation run creches. Picnics are arranged by NGO's to take them to the
Zoo and parks and museums to make them familiar with the outside world.
Admission of the children above 5 years of age to Government cottage homes
and to residential schools is facilitated through NGO's.
G
In Goa, the report states that dietary facilities for children are provided
by the Government. The Medical Officer of the primary Health Centre,
Candolim visits prisoners and children twice a week. If required, they are
sent for better treatment to Government Hospitals.

In Gujarat, a special diet and special medical facilities as prescribed by H
-\

1146 SUPREME COURT REPORTS [2006) 3 S.C.R.

A the Medical Officer are available for children. Cradle facilities are provided
for infants.

In Haryana, a standard diet of rice, flour, milk and dal is provided with
a special diet provided on the advice of Medical Officer. Health issues are
looked after as per the advice of Medical Officer. Regular literacy classes are
B taken by two lady teachers on deputation from the State Education Dept. at
Borstal Jail, Hissar. Books and toys are provided.

In Himachal Pradesh, children are aHowed to live with their mothers
-
up to the age of 4 years or in special cases up to 6 years by the approval of
C the Superintendent. Children under the age of I year are provided with milk,
sugar and salt. Provision is also made for ration for children from 12-18
months and from 18-24 months. Extras may be ordered by the Medical
Officer. Female prisoners and their children are in a separate ward, with its
own toilets. This ensures that there is no mixing between the children and the
male prisoners.
D
In Jammu & Kashmir, a special diet is available, as prescribed by the
Medical Officer. Supplements are also provided to breast feeding mothers.

In Jharkhand, children are allowed to live with their mothers up to the
age of 5 years. Provisions are made for special ration above and beyond the
E nonnal labouring ration for nursing mother and for supplementary cow's
milk for children under the age of 1 year not receiving sufficient milk from
the mother. Provision is also made for ration for children from 12-18 months
and from 18-24 months. Health and clothing are taken care of by the Jail
superintendent. Toys and items of entertainment have been provided in some
jails.
F
In Karnataka, children are allowed to live with their mothers up to the
age of 6 years. Education is looked after for by various NGO's. When the
children are to leave the jail, they are handed over to the relatives or to some
trustworthy person, Agency or school.
G In Kera/a, a special diet and medical facilities are made available as
prescribed by the Medical Officer. Special clothing can also be so prescribed.

In lakshadweep, it was reported that there is no undertrial prisoner
lodged in jail along with her child and, therefore, need for making arrangements
H for children along with mothers is not felt necessary.
)-

R.D. UPADHYAYv. STATE OF A.P. (SABHARWAL, CJ.] 1147
Jn Madhya Pradesh, cl.ildren are allowed to live with their mothers up A
to the age of 4 years or in special cases up to 6 years by the approval of the
Superintendent. There is provision for special ration above and beyond the
normal labouring ration for nursing mother and for supplementary cow's
milk for children under the age of I year not receiving sufficient milk from
the mother. Provision is also made for ration for children from 12-18 months
and from 18-24 months. For children who are leaving the jail, in consultation B
with the District Magistrate the children are handed over to the relatives or
to some trustworthy person as selected by the District Magistrate himself.

In Maharashtra, children are allowed to live with their mothers up to
the age of 4 years. They are to be weaned away from their mothers between C
the ages of 3 to 4 years. A special diet is prescribed under the Maharashtra
Prison Rules. Changes can be recommended by the Medical Officer. Specific
amounts of jail-made carbolic soap and coconut oil are to be provided for by
the authorities. Garments are to be provided as per the Maharashtra Prisons
Rules. Two coloured cotton frocks, undergarments and chaddies per child
have been prescribed per year. A nursery school is conducted by 'Sathi', an D
NGO in the female jail on a regular basis. Primary education is provided for
by 'Prayas', a voluntary organization in Mumbai Central Prisons. A small
nursery with cradles and other reasonable equipments is provided in each
women's ward. Toys are also provided for by the authorities. On leaving the
jail, children are handed over to the nearest relative, in whose absence to the E
officer- in-charge of the nearest Government remand home, or institution set
up for the care of the destitute children urider the Bombay Children Act,
1948.

In Manipur, provision is made for special ration above and beyond the
normal labouring ration for nursing mother and for supplementary cow's p
milk for children under the age of one year not receiving sufficient milk from
the mother. Provision is also made for ration for children from 12-18 months
and from 18-24 months. The Superintendent is entrusted with the responsibility
of providing clothing for children who are allowed to reside with their mothers.

In Meghalaya, children are allowed to live with their mothers up to the G
age of 6 years. All aspects of the children's welfare are taken care of according
to the Rules under the State Jail Manual.

Jn Mizoram, children are allowed to live with their mothers up to the
age of 6 years. A special diet is prescribed under the Rules of the Jail Manual.
H
1148 SUPREME COURT REPORTS [2006] 3 S.C.R.

A However, no proper facilities for education or recreation exist.

In Nagaland, the provisions of the Assam Jail Manual have been adopted
vis-a-vis facilities for women and for children living with their mothers.

In Orissa, children are allowed to live with their mothers up to the age
B of 4 years or in special cases up to 6 years by the approval of the
Superintendent. A special diet is available, as prescribed by the Medical
Officer. Children are provided with suitable clothing. On leaving the jail, in
consultation with the District Magistrate, the children are handed over to the
relatives or to some trustworthy person, as selected by the District Magistrate
himself.
c
In Pondicherry, a special diet is available as prescribed by the Medical
Officer. Play things, toys etc. are provided to the children at Government cost
or through NGOs.

In Punjab, children under the age of one year are provided with milk
D and sugar. Provision is also made for ration for children from 12-18 months
and from 18-24 months. Extra diet is available on the advice of the Medical
Officer. There is a play way nursery and one aaya or attendant who looks
after the children from time to time.

E In Rajasthan, a special diet is available under the rules of the Jail
Manual. Special medical facilities are also provided for as prescribed in the
manual. Clothing and toys are provided for by NGOs.

In Tamil Nadu, children are allowed to live with their mothers up to the
age of 6 years. A special diet and special clothing are available as prescribed
F by the Medical Officer. Children under 3 years of age are treated in the
creche and those upto the age of 6 years are treated in the nursery. Oil, soap
and hot water are available for children. On leaving the jail, in consultation
with the District Magistrate, the children are handed over to the relatives or
to some trustworthy person, as selected by the District Magistrate himself.

G In Tripura, the diet of children is as per the instructions of the Medical
Officer. Medical care and nursing facilities are available. Mothers accompanied
by children are kept separately.

In Uttar Pradesh. children are allowed to live with their mothers up to
·-
the age of 6 years. A special diet is available under the Rules of the Jail
H Manual. On leaving prison, in consultation with the District Magistrate, the
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1149
· children are handed over to the relatives or to some trustworthy person, as A
selected by the District Magistrate himself.

In Uttaranchal, food is provided as under the· Rules of the Jail manual.
Education provided for by the Government, which also makes arrangement
for extra-curricular activities such as sports.
B
In West Bengal, normal facilities are available and in addition to that
Inner Wheel club also runs a Homeopathic clinic for children. A non-formal
school is run by an NGO for rendering elementary education to the children.

From the various affidavits submitted, it seems that there were 6496
undertrial women with 1053 children and 1873 convicted women with 206 C
children.

On 23rd January, 2002, it was noted that three matters were required
to be dealt with by the Court: ( 1) Creation of sufficient number of subordinate
courts as well as providing adequate infrastructure and filling up of the existing
vacancies; (2) necessary direction with regard to dealing with the children of D
women undertrial prisoners/women convicts inside jail; and (3) arrangement
required to be made for mentally unsound people who are either undertrial
prisoners or have been convicted. It was then directed that the question of
dealing with the children of women undertrial prisoners and women convicts
be taken up first. That is how we have taken up this issue for consideration, E
perused various repo1ts, heard Mr. Ranjit Kufllar, Senior Counsel, who assisted
this Cou·rt as Amicus Curiae, Mr. Sanjay Parikh and other learned counsel
appearing for Union of India and State Governments. We place on record our
..r appreciation for the able assistance rendered by learned Amicus and other
learned counse I.
F
It may be noted that on 29th August, 2002, a field action project prepared
by the Tata Institute of Social Science on situation of children of prisoners
was placed before this Court. Responses thereto have been filed by the Union
of India as well as the State Governments.

The report puts forward five grounds that form the basis for the G
suggestion to provide facilities for minors accompanying their mothers in the
prison :

(a) The prison environment is not conducive to the normal growth
and development of children;
H
1150 SUPREME COURT REPORTS [2006] 3 S.C.R.
~

A (b) Many children are born in prison and have never experienced a
normal family life, sometimes till the age permitted to stay inside
(four to five years);
(c) Socialization patters get severely affected due to their stay in
prison. Their only image of male authority figures is that of
B police and prison officials. They are unaware of the concept of
a home, as we know it. Boys may sometimes be found talking
in the female gender, having grown up only among women
confined in the female ward. Unusual sights, like animals on the
road (seen on the way to Court with the mother) are frightening.

c (d) Children get transferred with their mothers from one prison to
another, frequently (due to overcrowding), thus unsettling them;
and
(e) Such children sometimes display violent and aggressive, or
alternatively, withdrawn behaviour in prison.
D Specific suggestions have been put forward vis-a-vis children once they
reach the confines of the prison. The minimum is the existence of a Balwadi
for such children, and a creche for those under the age of two. The Balwadi
should be manned by a trained Balwadi teacher and should have the facilities
of a visiting psychiatrist and pediatrician. A full-time nurse could also be
E made available. Immunization should take place on a regular basis. If the
child is sick and needs to be taken outside the prison, the mother should be
allowed to accompany the child. The Balwadi would provide free space, toys
and games for children. It can also organize programmes on mother and child
care, hygiene and family life for mothers. It has also been suggested that ..
these facilities should be located outside, but attached to the prison. This
F would combat the negative psychological impact of the prison environment '
and expose the children to 'normal' figures not found in the women's barracks.
It is also suggested that specialized clothing including winter-wear and bedding
including plastic sheets should be provided to children. Concerns have also
been raised regarding the issuance of a birth certificate that mentions the
G prison as the place of birth of a child born in prison. It is suggested that
child's residence should be mentioned as the place of birth and not the
prison. 1-

Emphasis has been placed on the diet of such children. It recommends
that a special diet be prescribed, as per the norms suggested by a nutrition or
H child development expert body such as the National Institute of Public
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1151
Cooperation and Child Development. The diet should be standardized A
according to the age of the child and not prescribed as uniform irrespective
of the age of the child. The special needs of the child should be kept in mind,
for instance, milk needs to be kept fresh which will not be the case if it is
handed out only once in the morning. Toned milk may be required or boiled
water may need to be provided. For satisfying these needs and providing a
satisfactory diet may even require the creation of a separate kitchen unit for B
children.

Several suggestions have been made vis-a-vis the judiciary, legal aid
authorities, the Department of Women and Child Development/Welfare and
the Juvenile Justice Administration (under the Juvenile Justice Act) and the C
Probation Department. in relation to the welfare measures that can be taken
for children of undertrial and incarcerated prisoners, both living within and
outside the jail premises.

The Union of India, in its affidavit, has pointed out that it has taken
several measures for the benefit of children in general, including children of D
women prisoners in this larger group. These measures include 'Sarva Shiksha
Yojna', Reproductive and Child Health Programme, and Integrated Child
Development Projects and passing of the Juvenile Justice (Care and Protection
of Children) Act, 2000 for the welfare of children in general.

Union of India also pointed out that the Swadhar scheme has been E
launched by the Department of Woman and Child Development with the
objective of providing for the primary needs of shelter, food, clothing, care,
emotional support and counselling to the women convicts and their children,

- I
when these women are released from jail and do not have any family support,
among other groups of disadvantaged women. F
Reference has already been made to the report of the National Institute
of Criminology and Forensic Sciences which was forwarded to various States ·
and Union Territories in 2002.

Union of India also brought to the notice of the Court that a Jail Manual G
Bill ("The Prison Management Bill, I 998") had been prepared which, inter
alia, deals with the plight of women prisoners, under Chapters XIV and XVI.
-r
This Bill was prepared with the laudable aim of bringing uniformity to jail
management across the country. It is important to note that Chapter II of the
Bill delineates various rights and duties of prisoners. The. rights include the
right to live with human dignity; adequate diet, health and medical care, H
.l

1152 SUPREME COURT REPORTS (2006] 3 S.CK

A clean hygienic living conditions and proper clothing; the right to
communication which includes contact with family members and other persons;
and the right to access to a court of law and fair and speedy justice. Clearly,
the rights of children of women prisoners living in jail are broader than this
categorization, since the children are not prisoners as such but are merely
B victims of unfortunate circumstances. It is also important to note that Section
33 of the Bill mandates the provision of a Fair Price Shop in all prisons
accommodating more than 200 prisoners. This shop should also offer essential
items for children of prisoners. In addition, Section 60 (l)(d) provides for
temporary or special leave being granted to a prisoner who shows sufficient
cause to the State Government or the concerned authority. This can be utilized
C to grant parole to pregnant women. It may also be noted that Chapter IV of
the Bill relates to release and after care and Chapter XVI deals with special
categories of prisoners. Both these chapters have a special significance when
considering the rights of Children of Women prisoners.

The Union of India noted that the "National Expert Committee on
D Women Prisoners", headed by Justice V.R. Krishnaiyer, framed a draft Model
Prison Manual. Chapter XXIII of this manual makes special provision for
children of women prisoners. This manual was circulated to the States and
Union Territories for incorporation into the existing jail manuals. It is
significant to note that this committee has made important suggestions
E regarding the rights of women prisoners who are pregnant, as also regarding
child birth in prison. It has also made suggestions regarding the age up to
which children of women prisoners can reside in prison, their welfare through
a creche and nursery, provision of adequate clothes suiting the climatic

F
conditions, regular medical examination, education and recreation, nutrition
for children and pregnant and nursing mothers.

Various provisions of the Constitution and statutes have been noticed
\ -
earlier which cast an obligation on the State to look after the welfare of
children and provide for social, educational and cultural development of the
child with its dignity intact and protected from any kind of exploitation.
Children are to be given opportunities and facilities to develop in a healthy
G manner and in a condition of freedom and dignity. We have also noted U.N.
conventions to which India is a signatory on the Rights of the Child.

This Court has, in several cases, accepted International Conventions as
enforceable when these Conventions elucidate and effectuate the fundamental
H rights under the Constitution. They have also been read as part of domestic
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1153
law, as long as there is no inconsistency between the Convention and domestic A
law (See Vishaka v. State of Rajasthan, [1997) 6 SCC 241)). In Sheela Barse
v. Secretary, Children's Aid Society, [1987] 3 SCC 50 which dealt with the
working of an Observation Home that was maintained and managed by the
Children's Aid Society, Bombay, it was said:

"5. Children are the citizens of the future era. On the proper bringing B
up of children and giving them the proper training to turn out to be
good citizens depends the future of the country. In recent years, this
position has been well realised. In 1959, the Declaration of all the
rights of the child was adopted by the General Assembly of the United
Nations and in Article 24 of the International Covenant on Civil and C
Political Rights, 1966. The importance of the child has been
appropriately recognised. India as a party to these International
Charters having ratified the Declaration, it is an obligation of the
Government of India as also the State machinery to implement the
same in the proper way. The Children's Act, 1948 has made elaborate
provisions to cover this and if these provisions are properly translated D
into action and the authorities created under the Act become cognizant
of their role, duties and obligation in the performance of the statutory
mechanism created under the Act and they are properly motivated to
meet the situations that arise in handing the problems, the situation
would certainly be very much eased."
E
True, several legislative and policy measures, as aforenoted, have been
taken over the years in furtherance of the rights of the child. We may again
refer to the Juvenile Justice Act which provides for the care and rehabilitation
•
1
of neglected and delinquent children, under specially constituted Juvenile
welfare boards/courts. It provides for institutionalization of such children, if F
necessary. Juvenile children's homes have been set up both by the State as
well as by NGO's to house such children. In some states, Social Welfare and
Women and Child Development/Welfare Departments have specific schemes
for welfare and financial assistance to released prisoners, dependants of
prisoners and families of released prisoners. Some States have appointed
Prison Welfare Officers to look after the problems of prisoners and their G
families. In some other States, Probation Officers are performing this task,
- / apart from their role under the P.O. Act, 1958.

However, on the basis of various affidavits submitted by various State
Governments and Union Territories, as well as the Union of India, it becomes
H
1154 SUPREME COURT REPORTS [2006] 3 S.C.R.

A apparent that children of women prisoners who are living in jail require
additional protection. In many respects, they suffer the consequences of
neglect. While some States have taken certain positive measures to look after
the interests of these children, but a lot more is required to be done in the
States and Union Territories for looking after the interest of the children. It
B is in this light that it becomes necessary to issue directions so as to ensure
that the minimum standards are met by all States and Union Territories vis-
a-vis the children of women prisoners living in prison.

In light of various reports referred to above, affidavits of various State
Governments, Union Territories, Union of India and submissions made, we
C issue the following guidelines :

I. A child shall not be treated as an undertrial/convict while in jail
with his/her mother. Such a child is entitled to food, shelter,
medical care, clothing, education and recreational facilities as a
matter of right.
D 2. Pregnancy:

a. Before sending a woman who is pregnant to a jail, the
concerned authorities must ensure that jail in question has
the basic minimum facilities for child delivery as well as for
providing pre-natal and post-natal care for both, the mother
E and the child.

b. When a woman prisoner is found or suspected to be pregnant
at the time of her admission or at any time thereafter, the
lady Medical Officer shall report the fact to the
superintendent. As soon as possible, arrangement shall be I
..
F made to get such prisoner medically examined at the female
wing of the District Government Hospital for ascertaining
the state of her health, pregnancy, duration of pregnancy,
probable date of delivery and so on. After ascertaining the
necessary particulars, a report shall be sent to the Inspector
General of Prisons, stating the date of admission, term of
G
sentence, date of release, duration of pregnancy, possible
date of delivery and so on.
,-
c. Gynaecological examination of female prisoners shall be
performed in the District Government Hospital. Proper pre-
H natal and post-natal care shall be provided to the prisoner as
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 11 SS
.. i
per medical advice. A
3. Child birth in prison:

a. As far as possible and provided she has a suitable option,
arrangements for temporary release/parole (or suspended
sentence in case of minor and casual offender) should be B
made to enable an expectant prisoner to have her delivery
outside the prison. Only exceptional cases constituting high
security risk or cases of equivalent grave descriptions can be
denied this facility.
----;

b. Births in prison, when they occur, shall be registered in the c
local birth registration office. But the fact that the child has
been born in the prison shall not be recorded in the certificate
of birth that is issued. Only the address of the locality shall
be mentioned.

c. As far as circumstances permit, all facilities for the naming D
rites of children born in prison shall be extended.
4. Female prisoners and their children:
a. Female prisoners shall be allowed to keep their children
with them in jail till they attain the age of six years. E
b. No female prisoner shall be allowed to keep a child who has
completed the age of six years. Upon reaching the age of six
years, the child shall be handed over to a suitable surrogate
as per the wishes of the female prisoner or shall be sent to
!
a suitable institution run by the Social Welfare Department. F
As far as possible, the child shall not be transferred to an
institution outside the town or city where the prison is located
in order to minimize undue hardships on both mother and
child due to physical distance.

c. Such children shall be kept in protective custody until their G
mother is released or the child attains such age as to earn
his/her own livelihood.
-;
d. Children kept under the protective custody in a home of the
Department of Social Welfare shall be allowed to meet the
mother at least once a week. The Director, Social Welfare H
1156 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Department, shall ensure that such children are brought to
the prison for this purpose on the date fixed by the
Superintendent of Prisons.

e. When a female prisoner dies and leaves behind a child, the
Superintendent shall inform the District Magistrate concerned
B and he shall arrange for the proper care of the child. Should
the concerned relative(s) be unwilling to support the child,
the District Magistrate shall either place the child in an
approved institution/home run by the State Social Welfare
Department or hand the child over to a responsible person
c for care and maintenance.
5. Food, clothing, medical care and shelter:

a. Children in jail shall be provided with adequate clothing
suiting the local climatic requirement for which the State/
U.T. Government shall lay down the scales.
D
b. State/U.T. Governments shall lay down dietary scales for
children keeping in view the calorific requirements of
growing children as per medical norms.

c. A permanent arrangement needs to be evolved in all jails, to
E provide separate food with ingredients to take care of the
nutritional needs of children who reside in them on a regular
basis.

d. Separate utensils of suitable size and material should also be
provided to each mother prisoner for using to feed her child.
F
e. Clean drinking water must be provided to the children. This
water must be periodically checked.

f. Children shall be regularly examined by the Lady Medical
Officer to monitor their physical growth and shall also receive
G timely vaccination. Vaccination charts regarding each child
shall be kept in the records. Extra clothing, diet and so on
may also be provided on the recommendation of the Medical 1-
Officer.

g. In the event of a woman prisoner falling ill, alternative
H
arrangements for looking after any children falling under
R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1157
her care must be made by the jail staff. A
h. Sleeping facilities that are provided to the mother and the
child should be adequate, clean and hygienic.

i. Children of prisoners shall have the right of visitation.

j. The Prison Superintendent shall be empowered in special B
cases and where circumstances warrant admitting children
of women prisoners to prison without court orders provided
such children are below 6 years of age.

6. Education and recreation for children of female prisoners:
c
a. The child of female prisoners living in the jails shall be
given proper education and recreational opportunities and
while their mothers are at work in jail, the children shall be
kept in creches under the charge of a matron/female warder.
This facility will also be extended to children of warders
and other female prison staff. D
b. There shall be a creche and a nursery attached to the prison .
for women where the children of women prisoners will be
looked after. Children below three years of age shall be
allowed in the creche and those between three and six years
shall be looked after in the nursery. The prison authorities E
shall preferably run the said creche and nursery outside the
prison· premises:
7. In many states, small children are living in sub-jails that are not
at all equipped to keep small children. Women prisoners with
children should not be kept in such sub-jails, unless proper F
·facilities can be ensured which would make for a conducive
environment there, for proper biological, psychological and social
growth.
8. The stay of children in crowded barracks amidst women convicts,
undertrials, offenders relating to all types of crimes including G
j
violent crimes is certainly harmful for the development of their
personality. Therefore, children deserve to be separated from
such environments on a priority basis.
9. Diet:
H
1158 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Dietary scale for institutionalized infants/children prepared by
Dr. A.M. Dwarkadas Motiwala, MD (Paediatrics) and Fellowship
in Neonatology (USA) has been submitted by Mr. Sanjay Parikh.
The document submitted recommends exclusive breastfeeding
on the demand of the baby day and night. If for some reason,
the mother cannot feed the baby, undiluted fresh milk can be
B given to the baby. It is emphasized that "dilution is not
recommended; especially for low socio-economic groups who
are also illiterate, ignorant, their children are already
malnourished and are prone to gastroenteritis and other
infections due to poor living conditions and unhygienic food
c habits. Also, where the drinking water is not safe/reliable since
source of drinking water is a question mark. Over-dilution will
provide more water than milk to the child and hence will lead
to ma/nutrition and infections. This in turn will lead to growth
retardation and developmental delay both physically and
mentally. " It is noted that since an average Indian mother
D produces approximately 600-800 ml. milk per day (depending
on her own nutritional state), the child should be provided at
least 600 ml. of undiluted fresh milk over 24 hours if the breast
milk is not available. The report also refers to the "Dietary
Guidelines for Indians - A Manual," published in 1998 by the
E National Institute of Nutrition, Council of Medical Research,
Hyderabad, for a balanced diet for infants and children ranging
from 6 months to 6 years of age. It recommends the following
portions for children from the ages of 6-12 months, 1-3 years
and 4-6 years, respectively: Cereals and Millets - 45, 60-120
and 150-210 grams respectively; Pulses - 15, 30 and 45 grams
F respectively; Milk - 500 ml (unless breast fed, in which case
200 ml); Roots and Tubers 50, 50 and 100 grams respectively;
Green Leafy Vegetables - 25, 50 and 50 grams respectively;
Other Vegetables 25, 50 and 50 grams respectively; Fruits - 100
grams; Sugar 25, 25 and 30 grams respectively; and Fats/Oils
(Visible) - 10, 20 and 25 grams respectively. One portion of
G
pulse may be exchanged with one portion (50 grams) of egg/
meat/ chicken/fish. It is essential that the above food groups to , -
be provided in the portions mentioned in order to ensure that
both macronutrients and micronutrients are available to the child
in adequate quantities.
H
-· R.D. UPADHYAYv. STATE OF A.P. [SABHARWAL, CJ.] 1159
/

10. Jail Manual and/or other relevant Rules, Regulations, instructions A
etc. shall be suitably amended within three months so as to
comply with the above directions. If in some jails, better facilities
are being provided, same shall continue.
11. Schemes and laws relating to welfare and development of such
children shall be implemented in letter and spirit. State B
Legislatures may consider passing of necessary legislations,
wherever necessary, having regard to what is noticed in this

... judgment.
12. The State Legal Services Authorities shall take necessary
measures to periodically inspect jails to monitor that the directions c
regarding children and mother are complied with in letter and
spirit.
13. The Courts dealing with cases of women prisoners whose children
are in prison with their mothers are directed to give priority to
such cases and decide their cases expeditiously. D
14. Copy of the judgment shall be sent to Union of India, all State
Governments/Union Territories, High Courts.
15. Compliance report stating steps taken by Union of India, State
Governments, Union territories and State Legal Services
Authorities shall be filed in four months whereafter matter shall E
be listed for directions.

In view of above, Writ Petition (Civil) No. 133 of 2002 is disposed of.
_,_
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v.s. Writ Petition disposed of.

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