Critical Analysis of Rights of Women Inmates in India
Introduction
With the passage of time and propagation of feminist ideologies there has been a significant development in the rights of women all around the world. International organisations have formulated numerous guidelines in accordance with which laws and policies in India have been modified. After all efforts, women still continue to be the disadvantaged section of society. The case becomes worse with women in prisons. Although, we have come a long way since independence in India, and fortunately there have been proper laws and their implementation that have taken place but the rights of women prisoners and their condition in the cells have perpetually been neglected by the higher agencies and authorities.
Moreover, it can be highlighted that women are not only discriminated against, assaulted, and marginalised on the streets or overtly in public but become victims even behind the bars. So, when we are raising voices against the former issues then the latter should also be taken into consideration and become a matter of significance in the present times because if not now, when?
Background
It is common knowledge that the requirements of women holistically are different from that of men. Similarly, Women in prison also require special attention in terms of the treatment that they receive in the prisons. There are various problems that are faced by such prisoners. As per the most recent available data, In the year 2021, the number of female prisoners in Indian jails amounted to 22,923. There has been an increase in the number of prisoners from the preceding year 2020 i.e., 20,058.
| No. of Women Jails in India | 32 |
| Capacity of Women Jails | 6,767 |
| Number of Female prisoners | 3,808 |
| Occupancy Rate | 56.3% |
| Capacity of Women inmates in other types of Jail | 22,659 |
| actual number of women inmates in other jails | 19,115 |
| Occupancy Rate on other jails | 84.4% |
| Women Prisoners with children | 1650 |
| Undertrial Women Prisoners with children | 1,418 |
| Convicted Women Prisoners with children | 216 |
| NGOs working for the welfare of female women | 202 |
TABLE 1, Types and occupancy, From: Prison Statistics India 2021, NCRB
Despite the availability of numerous legislations, guidelines, and manuals for protection of the rights of the female prisoners, there exists a substantial contrast between the expectations and the harsh realities. As prescribed by the Indian Constitution under the VII Schedule, the issues related to Prisons, reformatories, and other institutions of a like nature, and the administration of convicts are encompassed under the State list.
| 1 | Murder | 3548 |
| 2 | Attempt to Murder | 751 |
| 3 | Culpable Homicide not amounting to Murder | 406 |
| 4 | Rape | 386 |
| 5 | Kidnapping and Abduction | 519 |
| 6 | Dacoity | 113 |
| 7 | Dowry Death | 1819 |
| 8 | Theft | 593 |
| 9 | NDPS Act | 622 |
| 10 | Cheating | 313 |
Table 2 No. of female under trial prisoners by the Type of major Offenses at the end of 2015 From: Women in Prison, Ministry of Women and Child Development, GoI
The factors that might compel women to commit these grievous offences may be: financial crisis, the burden of fulfilling the need of the child at an adolescent age, the influence of media, lack of love and recognition in family, illiteracy, bad health, immorality, and cruelty.
Problems faced by Female Prisoners and their corresponding entitlements
- Deficiency of Female Working and Administrative Staff.
According to the UN Standard Minimum Rules for the Treatment of Prisoners [1]Rule 53(1) “In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.”
The supreme court, in the case of Sheela Barse v. State of Maharashtra[2] held that there should exist segregation between male and female lockups for their protection and safety. Also, the procedure to arrest the female offender has been given distinct acknowledgment by the Amendment to the Criminal Procedural Code, 2008. Section 46 of the Act stipulates that unless the circumstances otherwise require, there should be the availability of a female officer to make such an arrest. Any male police officer shall not touch the person or woman for making her arrest.
It is a female officer’s responsibility to respect the integrity and dignity of female prisoners.
Also, the National Model Prison Manual 2016 recognizes in principle that there should be one guarding staff for every six prisoners. That being so, for 554034 female prisoners there should exist around 92,339 female prisons guarding staff.
- Accommodation and Occupancy Rate
According to Chapter II of The National Prison Manual there have been proper guidelines specified regarding the accommodation of prisoners which includes the size of cells, furnished prisons with proper room for light to penetrate, and proper living conditions where every prisoner should have required space to reside in the cells. To add on, The UN Rules clarify for the motive of security and rehabilitation, the prison conditions should be restrictive for a well-ordered community.
Section 27 of the Prison Act, 1894[3] requisites with respect to the separation of female and male prisoners, the females shall be imprisoned in such manner as to prevent their seeing, conversing, or holding any intercourse with the male prisoners.
- Sanitation and Hygiene
Sanitation and hygiene become a crucial part for the prisoners especially females because due to bad hygiene they might suffer from infections and diseases which would affect the physical and psychological health of the prisoners. Moreover, hygiene becomes a matter of concern because women are compelled to use unhygienic and unclean washrooms even during their menstruation, which makes them vulnerable to infections and chronic diseases even more.
According to the PSI 2019 published by the NCRB, only about 18% (3,652) of the total women prisoners were housed in an exclusive women’s jail. As a result, the basic needs of the remaining 82% take a backseat compared to the male prison population. Furthermore, according to the Commonwealth Human Rights Initiative report in 2019, it was cogent that women are unaware with respect to their rights and entitlement, especially about the availability of sanitary napkins by the prison authorities.
- Health and Nutritional Requirements.
Females have a greater specialized requirement for Health facilities than males. The facilities available to female prisoners must be accessible, available, acceptable, and of good quality. Women’s basic health care needs include mental, physical, sexual, and reproductive health. To meet such requirements the NMPM 2016 prescribes that there must exist hospitals with separate wards for men and women in every prison. There should also be comprehensive health screening for women prisoners, including tests to determine the presence of sexually transmitted diseases, mental health concerns, the existence of drug dependency, etc. There are also provisions for the conduction of monthly medical inspections by the Medical Officer in charge where Lady Medical Officers are to be appointed to take care of the women prisoners. To meet the specialized needs, Gynecologists, psychologists, etc. can be ensured on a temporary basis.
Rule 20 of the UN Rules requires prisoners to be provided with food of such nutritional value that it is adequate for health and strength, of wholesome quality, and well prepared and served. The calorie intake is higher for pregnant and lactating inmates. In an interview with a woman under trial prisoner in Tihar jail, Delhi, there was a mention of the deplorable status of the quality of food received by the prisoner.
- Availability of Contact and Legal-Aid Services.
The Supreme Court in the case of Sunil Batra v. Delhi Administration[4] has restated that prisoners have the right to maintain their contact with the outside world and held “visits to prisoners by family and friends are a solace in insulation, and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity”
The prison manual stipulates for the prisoners to be allowed to write and receive letters, take phone calls, and meet with people in the manner prescribed and also prescribes for the state governments to set up legal aid cells in all the jails, appoint advocates for the prisoners who do not have one, and spread awareness of their rights among all prisoners. In the case of Hussainara Khatoon v. State of Bihar[5], the honourable Supreme Court held that when an accused is unable to afford legal services, such is to be provided by the State.
- Violence.
Violence occurs due to the clashes between prisoners and the administration as well as among prisoners. There also occurs gross Human Rights violence when women in prison get subjected to rape, sexual assault, and torture. Such incidents have been noted by the SC in the case of DK Basu v. State of West Bengal[6] and directions have been issued to the states to install CCTVs in all prisons.
The Prison Act,1894 provides that any female or civil prisoner shall be liable to the imposition of any form of handcuffs or fetters, or whipping which was reaffirmed in the case Vibin P.V. v. State of Kerala[7].
- Motherhood and Pregnancy.
In the case of R.D. Upadhyay v. State of Andhra Pradesh[8], The Supreme Court issued guidelines under which children living in jail are given the right to food, shelter, education, clothing, medical care, and recreational facilities. Arrangements have been made for children up till the age of 6 years to live with their mothers in prisons because these children have no one other than their mothers to take care of their interests and basic needs. As per the guidelines for medical care for pregnant and lactating women, they are provided with better dietary requirements and facilities to boil water and milk. In case the pregnant prisoner is at high risk, arrangements for temporary release are made for the delivery of children in hospitals.
As per the BPR&D Report of 2009[9], there is an unavailability of proper facilities for children in every prison.
Methods for Resolution
- There should be a meticulous implementation of the National Model Prison Manual, 2016 by all States;
- In accordance with the recommendations of the Mulla Committee 1980-83, there should be the establishment of a Separate National Commission for Prisons so as to serve as a monitoring and reviewing body that would strengthen coordination between states and channel uniform policy on prisons.
- Regular & thorough inspection of prisons should be conducted.
- There should be the adoption of special procedures for the arrest of women.
- Robust grievance redressal system should be implemented in accordance with the NMPM;
- Healthier living arrangements should be adopted in prisons in furtherance of turning prisons into reformation centers;
- Advantageous educational, vocational, and skill training plays an important role at the time female prisoners are introduced back into society;
- Stern monitoring with CCTV and body search should operate and the staff should be sensitised with regard to gender issues, human rights, and sexual misconduct;
- All states should comply with providing timely release of undertrial prisoners;
- The judicial authorities should endeavour to resort to non-custodial measures of punishment in case of non-heinous and non-violent crimes committed by women and imprisonment should be considered as a last resort.
Conclusion
In a century where human rights have come to the highest degree of claim and significance, the rights of female prisoners should not be compromised. There are violations of rights happening almost every hour in the prisons and the worst part is the unawareness among the victims, they are scapegoated for their conditions and are compelled to live in desolate conditions. The health requirements for women are far different than for men. There should be a priority given to pregnant and lactating mothers and timely checkups should be provided to them at a free rate. Furthermore, jails should focus on reformative and rehabilitative practices instead of preventive and retributive theories.
As evident, the imprisonment rate of female inmates has gradually increased, and as more and more women enter prisons, there arises a requirement to make appropriate infrastructural changes to cater to their specific needs. The conditions can be changed only by concrete change and policy development adhering to humanitarian principles of the future. Ergo, It is a prospective possibility that by comprehensively improving the conditions within prisons, the issue of criminality in women can be tackled. The provisions under the UN Standard Minimum Rules for the Treatment of Prisoners have been well incorporated under the National Model Prison Manual 2016 but what lags is its inviolated implementation.
Article By –
Ojaswini Thakur
Secretary, Centre for Human Rights, Gender and Social Inclusion, 3rd-year B.A.LL.B. (Hons), Jagran Lakecity University
Pooja Sevaramani
Student Member, Centre for Human Rights, Gender and Social Inclusion, 2nd-year B.A.LL.B. (Hons), Jagran Lakecity University
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[1] United Nations Standard Minimum Rules for The Treatment of Prisoners (the Nelson Mandela Rules) General Assembly resolution 70/175 adopted on 17 December 2015, Rule 53(1) [hereinafter UN Rules]. [2] AIR 1983 SC 378. [3] The Prison Act, 1894 (Act 9 of 1894) [hereinafter ‘NMPM 2016’]. [4] (1978) 4 SCC 409. [5] 1979 AIR 1369. [6] AIR 1997 SC 610. [7] W.P.(C) No. 9963 of 2012. [8] AIR 2006 SC 1946. [9] BPR&D Report no. 146.
