Access to Justice for Incarcerated Women and their Children in India: The Punishment Spill Over

Abstract

While women in India face several challenges in general, accused and incarcerated women face further socio-legal challenges if they have children outside the prison or they give birth while in prison. Today, many women live in prison with their children under six years of age, in cases where no other adequate arrangements can be made for their care making them ‘infant inmates’. A pregnant or lactating woman in prison suffers because of lack of adequate facilities including nutrition and health care. Thus, the rights of an incarcerated mother and her children need to be balanced with the societal and state’s obligation towards society. The paper studies women in prison with reference to their children and their rights. It contextualizes the understanding of child rights through a critical analysis of the existing legal position, prison practices, judicial decisions and India’s engagement international norms. The paper also refers to comparative positions in different countries to propose legislative solutions and best practises for building upon the theory of protection and promotion of the rights of the accused, with an emphasis on the best interest of her children. Thus, the paper provides suggestions on reorienting the approach of criminal law and the rights discourse for these ignored and forgotten victims of the justice system.