The Rights Of Children Of Incarcerated Person And Role Of Mediation: A Critical Appraisal
Saheba Shams, Kumail Asghar & Mohd Imran
ABSTRACT
Children of Incarcerated Parents (CoIP) is a group which is legally invisible in the margins of the criminal justice system in India. Almost 73.5% of India's inmates are undertrials, meaning that an estimated 800,000 to 900,000 children are exposed to extreme socio-economic and psychological situations without any transitional care system. Due to the rigid six-year cut-off policy in prisons enforced by R.D. Upadhyay, children outside prisons are left with an absolute institutional vacuum. The State's default reliance on combative litigation at the Family Court and/or bureaucratic, cold placement by Child Welfare Committees (CWCs) regularly breaches children's fundamental rights as guaranteed by Articles 14, 21 and 21A of the Constitution of India, and the statutory guidelines of the “Best Interests of the Child” principle.
This paper adopts a doctrinal, comparative and socio-legal framework based on empirical field evidence gathered from PRAYAS-TISS, to evaluate the structural deficiencies in the Mediation Act, 2023. Sec.6(1) of the Act and entries 2 and 7 of the First Schedule of the Act impose an institutional barrier by excluding a dispute over a minor or a criminal prosecution from the mediation matrix.
To dismantle this statutory silo, state shall establish an institutionalised framework for ‘Child-Inclusive Family Mediation' with the help of Sec. 6(2) of the Act of 2023. The binding Kinship Care and Parental Contact Plans will be co-authored by incarcerated parents, extended kinship networks and social workers, through this mechanism, harmonized with the Juvenile Justice Act, 2015 and BNSS 2023. Thereby, transitioning Indian jurisprudence from the punitive paradigm to restorative paradigm that recognizes the state’s role as a Parens Patriae.
Keywords: Children of Incarcerated Parents (CoIP), Mediation Act 2023, Article 21, Juvenile Justice Act 2015, and Kinship Care Plans.
