Written by Aboo Bakr student at Jamia Millia Islamia
From the beginning of human civilisation to the modern era of unprecedented advancement, history bears witness to a grave truth: if there is one being whose dignity has been most violated, whose existence has been most trampled upon, and whose honour has been most ruthlessly exploited, it is none other than the woman.
In this 21st century, where everyone talks about human rights, equality, and justice, women are still wrestling with entrenched discrimination and hardship on many fronts. Their rights are often shrugged aside, even with various laws and policies on the principle of justice across the globe, especially in regions where they should be the safest—the prison system, which was primarily designed for the incarceration of men. Women who already suffer from social chauvinism also face discrimination in prison, which is largely occupied by male staff and promotes an atmosphere for female inmates that fail to meet and address their physical, emotional, and social requirements.
The gender-specific needs of prisoner women are often overlooked, primarily due to their numerical minority within the prison population. However, statistics also show a slow increase in women in prison and highlight a need to address the current panel framework. This blog examines the challenges faced by women prisoners, the lacunae in their legal protection, and the necessary reforms to address these issues.
The Situation Of Women’s Prisons In India:
Women incarcerated in Indian prisons are systematically deprived of their fundamental rights and basic amenities, including access to libraries, factory areas, open spaces, and recreational facilities that men can easily access, just because they are part of the male section of the prison. Although the total population of female prisoners remains a small percentage of the overall prison population, increased by 11.7% from 2014 to 2019, women made up 4.2% of the prison population. The report also highlights that 76% of all prisoners are undertrials, worsening the issue of prolonged incarceration without conviction that amounts to a clear violation of the right to speedy trial, as held in Hussainara Khatoon v. State of Bihar (1980).
Notably, only 18% of female prisoners get exclusive women’s prison facilities, as only 15 states and UTs have functional women’s prisons. The rest of the population lives in enclosures inside the prison facility. There is a lack of separate medical and psychiatric wards for female inmates. Distressingly, less than 40% of prisons provide sanitary napkins to female inmates, violating Article 21 of the Constitution. Women who are accompanied by their children are also deprived of nutritious food and proper education. Only prisons in Goa, Delhi, and Puducherry permit female prisoners to meet their children without being separated by bars or glass. It is concerning to note that 75% of prison wards for women must share common living spaces and kitchens with male offenders, increasing the risk to security.
Judicial Pronouncement & Committee Reports On Women Prisoners’ Rights:
The Prisons Act of 1894 or the corresponding State Prison Manuals govern the management and administration of prisons, which are solely the responsibility of state governments. The States bear the parens patriae responsibility to ensure the protection of prisoners’ rights and to amend the prison regulations to align with evolving human rights standards. The State’s duty extends to preventing and penalising violence against women, whether perpetrated by public officials or private actors, as part of its obligation to uphold the principles of natural justice and due process of law.
The Indian judiciary has time and again ruled about appalling women’s conditions in prisons. The Same thing happened in the case of Shatrughan Chauhan v. Union of India (2014), wherein the Supreme Court of India dealt with the inhumane treatment of prisoners and emphasised their constitutional right of prisoners under Article 21. In Sheela Barse v. Secretary, Aid Society (1987) too, the Court laid down guidelines for safeguarding the fundamental rights of women prisoners.
In its landmark judgement in D.K. Basu v. State of West Bengal (1997), the Supreme Court of India unequivocally held that any kind of torture, cruel, inhuman or degrading treatment is included in the concept of personal liberty as per Article 21 of the Constitution and thus a constitutional prohibition against custodial violence.
The Model Prison Manual, draughted by the Bureau of Police Research and Development (BPRD), also underscores the need for gender-sensitive prison management. The Prison Act of 1894 contains provisions that apply to all convicts regardless of their sex because it makes no mention of female inmates in India.
The Need For Gender – Specific Legal Rights:
Recognising the plight condition of women in prison, states must adopt a proactive and reformative approach to ensure gender-sensitive prison policies. The measures outlined below, though not exhaustive, are sine qua non for upholding the fundamental rights of women prisoners.
- Rights of Pregnant Women – Pregnant women should not be imprisoned unless there is absolutely no alternative, as imprisonment leads them to severe psychological distress owing to separation from their families. The Supreme Court in the case of R.D. Upadhyay v. State of A.P. (2006) laid down binding guidelines concerning pregnancy, antenatal care, childbirth, postnatal care, and child welfare for incarcerated mothers.
- Child Care – Women in prison frequently serve as minor children’s primary or only carers. In many nations, it is not uncommon for infants to be sent to prison alongside their mothers. The impact of their mother’s imprisonment on the children affects every aspect of their lives and not only their relationship with their mother. The All India Committee on Jail Reforms (herein referred to as AICJR) recommended that children up to the age of five years be allowed to stay with their mothers in specially designed crèches outside the main prison building. The Supreme Court, from time to time, has also emphasised for proper care of the children of those women who are serving prison terms.
- Mandatory Appointment of Women Staff – The male-dominated prison administration seldom exposes women inmates to harassment. In 1983, the AICJR recommended that all female prisons and annexes be staffed exclusively by women personnel. Furthermore, in cases where female prisoners are kept in male-dominated facilities, temporary appointments of female guards must be made to ensure their security and privacy.
- Access to Free Legal Aid – Women prisoners are entitled to free legal assistance, still many women remain oblivious to their legal rights. Article 39A of the Constitution mandates free legal aid for all citizens, ensuring equal access to justice. Despite the Model Prison Manual laying down guidelines for legal aid, many female inmates remain unaware of their case details, legal proceedings, and even their case numbers. The Committee on the Empowerment of Women has repeatedly highlighted the urgent need for legal awareness and active legal representation for women prisoners to uphold the principles of natural justice.
The Way Foreward:
Across the world, including India, voices are raised against egregious and preposterous violations of human rights, particularly concerning women and children. Yet, there remains one marginalised group that is perpetually overlooked—those confined within the grim walls of prisons, about them our traditional and typical minds think only one thing: that they are not human beings, they do not have access to their basic amenities, they should be deprived of every facility, and they do not even deserve any basic rights. However, the law and justice system is not just for free citizens but for everyone who breathes, who feels, and who is alive. A society that turns a blind eye to the injustices within its prison system compromises the very essence of justice itself.
Moreover, the Prisons Act, 1894, is outdated and needs repair. It contains no provision regarding the welfare and the betterment of the women prisoners. Recognising the urgent need for prison reforms, the Supreme Court in 2018 constituted a committee led by Justice Amitava Roy to examine prison conditions. However, the mere establishment of committees is not a panacea—similar efforts, such as those led by Justice A.N. Mulla and Justice V.R. Krishna Iyer in the 1980s, failed to translate into tangible reforms.
If the state governments are concerned about incarcerated women, if they truly prioritise women’s welfare, if they are really earnest in their “women empowerment” slogans, then they must walk the talk on women’s prisoner reforms rather than just talking the talk. Lastly, the judiciary must also ensure that the principles of audi alteram partem and fiat justitia ruat caelum are not mere platitudes but a lived reality for women prisoners.