By Rajesh Pandey
Hearing the bail application of a lady who was in jail with her five-year-old son, the Allahabad High Court has expressed concern for those children, who reside in prisons with their incarcerated parents, saying that such children cannot be deprived of their right under Article 21 (right to life) and Article 21A, which provides right to compulsory education for children under the Constitution of India.
Besides, the court also emphasized their fundamental -childhoods and future.
In this backdrop, Justice Ajay Bhanot directed, the Principal Secretary, of Women and Child Development, Government of UP to ensure that the state has created a structured program/scheme with supporting infrastructure for education, health, wellness, and holistic development of children of inmates, who reside with them in jails and to protect them for negative influences resulting from the stay in jail.
The order was passed hearing the bail application of one Smt Rekha, who is charged with the murder of her minor stepson.
Using the present bail application, the applicant had prayed to be enlarged on bail in the matter as she has been in jail since October 16, 2023.
Rejecting the bail application of the applicant the court observed ” The applicant has been identified as the principal offender, who murdered her minor stepchild and threw his body in a tank situated in the house.
The dead body was recovered at the pointing out of the applicant. The applicant had the motive to commit the offense The offense is grave. There is the likelihood that the applicant had committed the offense. At this stage, no case for bail is made out. “
The counsel for the applicant had submitted,” the ffive-year-oldson of the applicant is entirely dependant on her.
Denial of bail to the applicant in the instant case will cause the five-year-old child to perforce reside in the jail premises with her.”
Further family circumstances and social roots are among the criteria, that are factored in while deciding the bail application of an accused, added the applicant’s counsel.
On the submissions of the counsel regarding the rights of children who get confined to jail with their parents consequent to rejection of bail, the court said, ” The collateral damage inflicted upon a child as a result of the denial of bail to their parent becomes most significant when the child has to reside in prison with the accused parent. The court cannot shut its eyes to the plight of such children consequent to their confinement in jail by default”.
The court also passed directions for education, health, wellness, and holistic development of children of inmates who reside with mothers in jails.
The court in its order dated January 20, 2025 has further directed to the Principal Secretary, Department of Jail, Director General (Prisons), as well as jail authorities of district jails to execute the following directions:
First, the concerned jail authorities shall inform the Child Welfare Commission (CWC) about the child being confined to jail consequent to the imprisonment of their parent. The jail authorities shall also provide access to CWC to the child, who is residing in jail. The child shall be produced before the CWC.
Secondly, the children shall reside with their respective parents in separate barracks which should be effectively separated/barricaded from other prisoners. It shall be ensured that the children have no contact with other prisoners.