INVISIBLE VICTIMS: CONSTITUTIONAL AND HUMAN RIGHTS PROTECTIONS FOR MOTHERS IN INDIAN PRISONS

Abstract

Incarceration in India has historically been viewed through a gender-neutral lens, often ignoring the distinct biological and socio-legal needs of women. This article explores the plight of incarcerated mothers—the “Invisible Victims” of the Indian penal system. Despite robust constitutional protections under Articles 14, 15(3), and 21, and the landmark directives issued by the Supreme Court in R.D. Upadhyay v. State of Andhra Pradesh, a significant gap persists between judicial mandates and prison realities. By analyzing current National Crime Records Bureau (NCRB) data and international human rights benchmarks like the UN Bangkok Rules, this study identifies systemic failures in prenatal care, mental health support, and the traumatic transition of children out of prison at age six. The paper argues for a transition from a retributive carceral model to a restorative justice framework, proposing legislative amendments to the Bharatiya Nagarik Suraksha Sanhita (BNSS) that favor non-custodial measures for pregnant women and nursing mothers. Ultimately, the article posits that the “best interests of the child” must be integrated into the core of Indian criminal jurisprudence to prevent the “double punishment” of innocent children.