An Analysis of India's failing Prison System from a Gendered Lens
This article deals with an analysis of India’s failing Prison System from a Gendered Lens and the manifestations of prejudice in building a structure that promotes some insensitive practices. The condition of Prisons has never been adequately competent but the problems have not been realised on a gender level, creating conflicts with the constitutional framework on the Right… Read More »
This article deals with an analysis of India’s failing Prison System from a Gendered Lens and the manifestations of prejudice in building a structure that promotes some insensitive practices. The condition of Prisons has never been adequately competent but the problems have not been realised on a gender level, creating conflicts with the constitutional framework on the Right to Life and Equality for all.
Introduction
“Crime is the outcome of a diseased mind and jail must have an environment of hospital for treatment and care.” ― Mahatma Gandhi
Russian novelist Fyodor Dostoyevsky, author of one of the most celebrated novels in the world of legal literature, Crime and Punishment, once said that “the degree of civilization in a society can be judged by entering its prisons.”
What is a Prison?
In simple words, Prisons can be defined as “a place used for the detention of prisoners” and this is largely based on the concept that a criminal is a dangerous and a misfit person, who is excluded from society and sent to prison for incarceration as a punishment.[1]
Prisons from across the globe, house people either convicted of a particular offence or accused of it and since the idea of prison is always associated with punishment rather than rehabilitation, the condition and overall environment of such institutions are largely overlooked, especially in the matters of sanitation, hygiene, safety and security, medical assistance, legal assistance, etc. Thus, human rights violations are commonplace in such a setup.
Women: An account of their Basic Rights and Needs
In India, according to Prison Statistics, 2018,[2] there were 4,66,084 prisoners in total, including convicts and undertrials. Out of these, 4,46,842 were male prisoners while only 19,242 were female prisoners. The Criminal Justice System in India does not discriminate between female and male prisoners, but due to the societal structure and prevalence of various pernicious ideologies such as patriarchy, social stigma and general discrimination faced by women because of their gender, the prison system proves to be exceptionally rough and belligerent for them.[3]
Women who end up in prison generally face difficulties prior to prison life also. A Report by the World Health Organization highlights this issue by stating that “the prison population does not represent a homogenous segment of society, rather, it mostly consists of people who have lived at the margins of the society, are poorly educated and come from socioeconomically disadvantaged groups.”[4]
Discrimination, coupled with power difference between the female inmates and the jail authorities, often leads to challenges which range from basic amenities such as lack of sanitation, and medical needs to systematic torture and even death. Minor issues such un-hygienic jails, sanitation, food-related issues, lack of products for menstruation such as a sanitary napkin, and more major issues such as psychological, physical and sexual abuse, no proper amenities for children of the prisoners, prevail.
While there are legislations and guidelines such as the National Model Prison Manual 2016, which aims at raising the bar for the living condition of women, it seldom gets implemented in reality. The Constitution of India grants basic fundamental rights, such as Right to Life,[5] to each and every person. Further, the Indian Courts have time and again implemented a prisoner’s basic rights and issued guidelines on several occasions.
The Court has issued guidelines for the welfare of women and their children who live in prison,[6] reiterated the basic principle that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration, [7] and that convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.[8]
Hence there are myriad of judgements and laws which offer protection to not only prisoners, but specifically women prisoners. But the challenges faced by the female inmates are not just due to weak laws, rather weak implementation of strong laws and judicial pronouncements.
Condition of Women in Prisons
“Prison is a second-by-second assault on the soul, a day-to-day degradation of the self, an oppressive steel and brick umbrella that transforms seconds into hours and hours into days.” ― Mumia Abu-Jamal
Since the inception of civilization, the concept of the prison has been developed to cope with the needs of the male members. Right from architecture, healthcare to work training, etc., all programs in a prison have been designed with men, as the focal point.[9]
If we look at history, we would notice that men who commit violent offences were sent to prison, but at the same time, women were sent to prison only to be punished for crimes of “moral turpitude”, such as prostitution, adultery, etc. But as society progressed, the number of women committing violent crimes, also increased. Even though the number has been increasing, the prison system has stayed the same and thus, women prisoners are in a system which was exclusively designed for men.[10]
According to the 2018 Report by the National Crime Records Bureau, female prisoners amount to around 4.1% of the total prison population.[11] This figure is a clear indicator of the fact that the female community is a minority when it comes to the prison population.
While the condition of men in our prison system is not better than the women, the latter tends to be excluded from the discussions where the rights of prisoners are discussed. The problems related to imprisonment become more pronounced in the context of women inmates.[12]
Many women who have been jailed, their character has been questioned and they have been castigated for not upholding the true values of being a woman. Beyond the discrimination, other issues that women tend to face is lack of proper healthcare for gender-specific needs, safety, proper institution for children of the prisoner and many more.
According to a report by the Ministry of Women and Child Development,[13] even though the Prison Manual theoretically ensures the presence of one toilet and one bathing cubicle for every 10 prisoners, the ground reality is much different.[14] The report also notes that the issue of health and hygiene is exacerbated by the low levels of water because of which prisoners are not able to bath for days.[15]
Another important observation made in the report is that large majority (81.8%) of female prisoners fall in the menstruating age group of 18-50 years, thus increasing the need of sanitary facilities and hygiene products and while the prisoners should be provided with such items, the same was missing.[16]
Many societies, including the Indian society, have placed the position of a pregnant woman on the highest pedestal, as motherhood has been represented as a saintly obligation which ensures the preservation of the idea and institution of a family. But even after such belief, the community at large tends to turn a blind eye towards women who are pregnant, but in jail.
There is a lack of medical professionals and facilities to cover the health and reproductive needs of these women. Nutrition, which is of utmost importance especially in the case of pregnant and lactating women, is a distant dream even though it is mandatory to provide such women with a special diet.
While pregnant women do not get the required healthcare assistance, another segment of female prisoners in need of our attention are the children, living with their mothers, who have been convicted of committing a crime, in prison. The children are allowed to stay with their mothers up to the age of six years, which are considered the formative years of childhood.
Several International Conventions, like the United Nations Convention on the Rights of the Child, has recognized the need for a safe environment for the upbringing of a child.[17] It is no secret that the confinement of children along with their mothers leads to the confinement of their psyche[18] and has the potential of causing long term negative effects on the minds of young children.
Even though there are several guidelines like the National Model Prison Manual, living in a prison is never the ideal condition, and thus “children become a secondary victim and get penalized along with their mothers.”[19]
Other hardships faced by the prisoners is rampant sexual abuse at the hands of prison authorities, issues revolving around reintegration into the society and lack of proper legal aid.[20]
Condition of Prisons for Women in India
“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”― Nelson Mandela
In a society that has for aeons discriminated and treated women as second-class citizens, the prison system in India is a mere reflection of the same. To begin with, while the Ministry of Home Affairs has recognized the need for each State to have at least one separate prison for women,[21] the ground reality shows that women jails exist in only 15 States/UT, of which 8 states have just a single dedicated women prison.[22]
Despite the occupancy rate in women jails on a National level being, a mere 58%, around 83.1% of total female inmates were lodged in other types of Jails. Moreover, particular states such as Maharashtra and West Bengal among others have reported 159.2% and 142% occupancy rates of women.[23]
While the recognition of separate custodial facilities for men and women has been since 1988,[24] manifestations of such recommendations are hardly ever seen, with women having to reside in the same complex as the male prisoners. Another caveat is the separation of convicts and inmates under trial which has been accepted both internationally[25] and nationally[26], but not in action due to severe space constraints.[27]
Overcrowding
Overcrowding has become one of the major problems plaguing the prison system in India, the reasons for which can be found in an inordinate delay in trials. This, together with the routine new additions, literally clogs the justice system.[28] The women under trial, in many cases, are only in jail because of their inability to pay fines imposed on them by courts.
Moreover, the National Police Commission has pointed out that “60% of all arrests were either unnecessary or unjustified. This has resulted in overcrowding and accounts for 43.20% of the expenditure of jails.” Unwarranted arrests by the police force, needs to stop to reduce overcrowding in jails.[29]
While the Supreme Court[30] has given directions for release of eligible under trial inmates under Section 436A of Code of Criminal Procedure, to deal with overcrowding and the resultant subhuman life conditions, what is yet to be seen is an execution of the same in a system that is already riddled with problems such as massive understaffing and financial crunches.
Overcrowding, while in itself is a major issue, has also resulted in a psychological and physical abuse for women in prison. While the Prison Manual, both at National and State level, provides for certain basic rules, they are seldom put in practice. While no separate data is available for women in terms of deaths while being in prison, a total of 46 deaths due to HIV were reported in 2018.[31]
A total of 51 deaths of women prisoners were reported in 2015, of which 48 deaths were considered to be of natural causes and three deaths occurred due to committing suicide. Concerns of mental health are often not given adequate importance, and women suffering from mental illnesses are often housed in prisons due to lack of other appropriate facilities. [32]
Other Impediments
There is an urgent need for the implementation of the rules, however, the same can only be done when there is an adequate number of staff members. The Hon’ble Supreme Court[33] in May of 2017, noted that there is a huge shortage of staff in almost every jail of the country. It directed all State Governments/UTs to take necessary steps on an urgent basis to fill up these vacancies by 31st December 2017. But by the end of the year 2018, a total of 25,816 positions were vacant.[34]
To look into the budgetary constraints faced by prisons, for the year 2018-19, an actual expenditure (in crore) of INR 5283.700 was reported in contrast to a sanctioned annual budget (in crore) of INR 6068.700.[35] To add on to this, in the year 2016-17, under the scheme of modernization of prisons, INR 465 Cr. (25.9%) were used for the construction of staff quarters for the prison personnel by the State Governments.
The question that then begs to answer is, “Who were these staff quarters being constructed for in light of the massive vacancies that have persisted since years?” Not only is there an improper allocation of funds, but also lack of funds for an upheaval that the prison system duly deserves.
The bar for providing basic amenities is extremely low, yet our authorities fail to serve on that aspect. There needs to be a complete reform of the system along with the proper implementation of the suggestions and recommendations given by various committees.
An Analysis of National and International Legislation/Guidelines
“Much more remains to be done to identify and address the pathways to women’s incarceration; to establish better, safer and more gender-sensitive conditions for women prisoners; to ameliorate the negative consequences of women’s imprisonment.”
Ms Rashida Manjoo, Special Rapporteur on violence against women, stated this in a report by the United Nations Office of The High Commissioner, titled “Women and Detention”, 2014.
Six years have passed since the report was published, but the present state of affairs remains the same as the previous, if not worse. While India has its own set of legislations, the plight of the prisoners has been dealt in several Conventions, Declarations, Covenants and Guidelines drafted by various International organizations, such as the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules),[36] United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) and many more.[37]
As stated above in the paper, the prison system, like many other systems, had originally been designed for the majority male population. Thus, several international organizations, such as the United Nations, have relentlessly worked in the field of the rights of women prisoners.
In the report by Quaker United Nations Office,[38] it was noted that “Because of the stigma that an Indian woman suffers if she has been raped, the authorities apparently fear that the victim will not show up in court to testify against her rapist. Accordingly, she is imprisoned to make certain that she is available to testify at trial”.[39]
Further, around 70% of women in prison are under-trial women and not even convicts. This directly goes against the basic Nelson Mandela Rules that, pre-trial detainees should be detained separately from convicted prisoners, and be subject to a special and far less strict prison regime.
It has also been observed that sometimes the prisons in India are used to house the mentally disabled, vagrants, destitute, runaway, abandoned girls or prostitutes, so as to provide them with safe custody.[40] Moreover, the medical condition of women is seldom considered, with one prisoner stating that, she was housed on the 2nd floor for 3 months even though she could barely walk and was then told by the prison sergeant that they “could care less if she fell down the stairs and broke her neck”.[41] This is again, against Rule 24 of the Nelson Mandela Rules which aims at providing necessary medical services for the prisoners.
The Prisons Act, 1894
In India, The Prisons Act, 1894 is the primary legislation governing the prison system. It was enacted pre-independence by the British, to keep the Indian prisoners under their subjugation. Since then, it has hardly undergone any substantial changes.
The law has failed to keep up with the technological and legal developments in the country. Facilities of CCTV Surveillance and Video Conferencing aren’t mandated by the Act, even though their importance has been emphasized time and again by various reports of the Government.[42]
Moreover, the Act fails to focus on the specific needs of female prisoners and the care and protection to be offered to pregnant women, children accompanying their mothers to prison or the gender-specific sanitary needs of prisoners. Further, there is an absence of programs which aim at correction, reformation and rehabilitation of prisoners.
Rather, focus is only on prison security, offence and punishment. There are various recommendations of not just different committees but also by different organs of the United Nations which must be incorporated in the Prison Act 1894 to ensure their implementation and the protection of the rights of female prisoners that has been on back-foot for decades now.
Both Central and State governments need to be cognizant and act upon the existing provisions of the Prison Act and the recommendations of the respective Prison Manuals to ensure that the prisoners both male and female, spend their sentence at least in livable conditions.
Conclusion
“It is not the prisoners that need reformation. It is the prisons.”-Oscar Wilde
The scope of improvement is vast and the means to do it, exist. What is missing is a willingness to execute these programs, laws, legislations etc., in order to ensure that our women in jails do not live a subpar life. The public outcry in cases of crimes against women is less, and the ones for women in conflict with law and the authorities are far lesser.
Each and every government so far has been negligent in uplifting the prison system. There needs to be a regular and thorough inspection of prisons along with reports regarding the same being published on a timely basis. One of the major gaps existing today is the lack of data about the condition of prisons and women prisoners.
There is almost no data or analysis for the different problems women face with regards to custodial torture or housing their children with them. Even if some data exists, it is often for prisoners as a whole and not specifically for women prisoners, even though the circumstances surrounding them are non-identical.
To even draw comparatives about the state of prisons and prisoners, at a minimum, a yearly report will be required. However, even that is missing, and one has to rely on past reports and guidelines. The 2018 report[43] recommends a robust grievance redressal system. The system should not only offer safety to the complainant but also ensure that there is no fear of retaliation.
A timely release of the under trial and convicts has to be ensured at all costs. The reintegration of women into the society is as important as a timely release, lest the women fall back into the vicious circle of crime and poverty. For this, it is important that education, vocational training, and skill development facilities not only exist but are also actively made available to women for the duration of their stay. We as a society need to do better in fighting for their rights and ensuring justice to our women in prisons.
Authored by:
Drasti Jain and Palak Singh
Government Law College, Mumbai and Symbiosis Law School, Pune
This Article was shortlisted in NARI SHAKTI 1st National Article Writing Competition 2020
[1] Bawa, P.S. “Towards Prison Reforms.” India International Centre Quarterly, vol. 27, no. 2, 2000 (Jun. 30, 2020, 4:40PM) www.jstor.org/stable/23005498.
[2] Prison Statistics, National Crime Records Bureau, Ministry of Home Affairs, 2018, available here
[3] Women In Detention and Access To Justice, 10th Report, Committee on Empowerment of Women, available here
[4] WHO, Bulletin of the World Health Organization, Imprisonment and Women’s Health: Concerns About Gender Sensitivity, Human Rights and Public Health, available here
[5] INDIA CONST. art. 21.
[6] RD Upadhyay v. State of Andhra Pradesh, (1996) 3 SCC 422.
[7] Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
[8] M.P. v. Shyamsundar Trivedi, (1994) 4 SCC 395.
[9] Quaker United Nations Office, Women in Prison: A Commentary on the UN Standard Minimum Rules for the Treatment of Prisoners, available here
[10] Id. At 9.
[11] Prison Statistics, Supra at 2.
[12] https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf.
[13] Women in Prisons, India, Ministry of Women and Child Development, Government of India, available here
[14] Id. At 14.
[15] Women in Prisons, supra note 14.
[16] Women in Prisons, supra note 14.
[17] U.N.O.H.C.R., United Nations Convention of the Rights of the Child, E/CN.4/RES/1990/74 (March. 7, 1990).
[18] Children of Women Prisoners, The Invisible Trial, Prayas 2018, Tata Institute of Social Sciences, Mumbai, available here
[19] Id. At 18.
[20] Children of Women Prisoners, supra note at 19.
[21] Women In Detention, supra note at 3.
[22] Prison Statistics India 2018, supra note at 2.
[23] Prison Statistics India 2018, supra note at 2.
[24] Justice Krishna Iyer, Report of the National Expert Committee on Women Prisoners (1988)
[25] International Covenant on Civil and Political Rights. Art. 10(2)(a)
[26] Section 27(3), Prison Act 1894
[27] Women in Prisons, supra note 14.
[28] Women In Detention, Justice supra note at 3.
[29] Women In Detention, supra note at 3.
[30] Bhim Singh v. Union of India, (2015) 13 SCC 605.
[31] Prison Statistics India 2018, supra note at 2.
[32] Women in Prisons, supra note 14.
[33] Re – Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700.
[34] Prison Statistics India 2018, supra note at 2.
[35] Prison Statistics India 2018, supra note at 2.
[36] UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), U.N. Doc. A/RES/70/175 (Dec. 17, 2015).
[37] United Nations for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), U.N. Doc. A/RES/65/229 (Dec. 21, 2010)
[38] Quaker United Nations Office Report, supra note at 9.
[39] Quaker United Nations Office Report, supra note at 9.
[40] Quaker United Nations Office Report, supra note at 9.
[41] Quaker United Nations Office Report, supra note at 9.
[42] Women In Detention, supra note at 3, Women in Prisons, supra note 14.
[43] Women in Prisons, supra note 14