Académique Documents
Professionnel Documents
Culture Documents
NTRODUCTION
Indian society gives honourable status to the women. The position of a woman
in the Vedas and the Upanishads is that of a mother (mata) or goddess (Devi). In the
Manusmriti, woman is considered as a precious being or be projected first by her
father, then by her brother and husband and finally by, her son. Presently women
represent 48.2 percent of the countrys population. Several developmental
programmes have been implemented by the Five Year Plans. In 1985, a separate
Department of Women and Child Development was set up. The major programmes
include Support to Tanning-cum- Employment Programme (STEP) for women,
MahilaKosh, Womens Development Corporation, etc. In India there is also need of
the programmes for solving the acute problems of women prisoners inside or outside
the prisons. Court is also considering the rights of the women. The Supreme Court has
made a ruling that a mother has the right to act as the guardian of her minor child. It
has made sexual harassment at workplace as an offence.1
On July 13, 2010, the Delhi High Court ruled that a pregnant woman
student cannot be barred from taking examinations in any semester, due to
attendance shortage. The court directed the Delhi University and Bar Council of
India, to relax the strict attendance rules, for students who are unable to attend classes,
due to pregnancy.2
1 http://www.publishyourarticles.org/knowledge-hub/essay/an-powerful-essay-on-the-statusof-women-in-india.html
2 http://www.lawisgreek.com/category/constitution-india/landmark-court-rulings
1
http://www.lawisgreek.com/tag/women-rights4
http://www.youthkiawaaz.com/2012/02/the-
deplorable-condition-of-women-prisoners-in-india
5 In a National Seminar on Prison Reforms on 15 th April, 2011 at Jacaranda Hall, IHC, New Delhi
4
2
Administration, Chandigarh But what about the women having no privilege, who
suffer a lot of problems in the prison. Most of the women do not even know about the
court procedure.5
Dr. UpneetLalli mentioned that the PrisonsAct, 1894 focuses only on prison
security, offence and punishment and not on correction, reformation and rehabilitation
of prisoners. She felt that problems still existed and changes were required in the
areas of overcrowding, delay in trial and legal aid, health and hygiene, prison visitsprocedure, food-hygiene, quality, service, poor living conditions, women and
children-drugs, mobiles, security issues, lack of educational, vocational training, lack
of reformation and slow pace of modernization. She stated that as about 4.1% of
prison population consisted of women, the problems of women prisoners should also
be given due care.6
KANNUR: Jails are no holiday resorts but they are expected to provide
basic amenities to inmates. Most jails lack these very facilities and the women's jail in
Kannur is no exception.
Though the original capacity of the women's jail here is 24, on any given day
the strength is 35 or above, according to sources.
"Earlier there was no such problem but after the women's cell in Hosdurg sub
jail was shut down and the prisoners shifted to the women's jail here, we have been
facing major problems in accommodating the prisoners," said a jail official on
condition of anonymity.
5
6 http://nhrc.nic.in/Documents/Minutes%20&%20Reco%20Prison%20Reform.pdf
3
"However, if there is any major space constraint, the authorities will take
adequate steps to address the issue," he said.
Moradabad Central Jail in Uttar Pradesh is so chock-a-block with inmates that
there isn't enough space for them to sleep. So the 2,200 inmates in the jail, which is
supposed to house only 650, sleep in shifts. Each morning when 600-odd prisoners go
to court for their trial, the pressure eases somewhat and some inmates get their share
of a 6ft x 2ft cell.
In UttarPradesh's Dasna jail, 13 men serving sentences in different cases got
together to form the Gore Khan gang which pulled off a sensational heist at a Tanishq
showroom in Chandigarh in January.
Begusarai jail in Bihar was so terrifying an experience for 18-year-old Amit
Kumar that he still wakes up screaming from nightmares of police boots crashing into
his body and faces of hardened criminals staring at him. Kumar was released from on
June 13 after spending 72 days there. He was arrested on charges of facilitating a
neighbour's abduction. Tortured to make him confess to the crime, he was released
only after the "abducted" boy's body was found and another neighbour confessed to
the crime.
On May2013 this year, DMKMPKanimozhi complained about the stench
from the attached toilet in her cell in Tihar's Jail No. 6 and the authorities bent over
backwards to ensure proper water supply to her cell. She should consider herself
lucky that she is not in the Tiruchirapalli women's prison in Tamil Nadu where
inmates have to get mud to clean their toilets since there isn't any water. Lodged in the
Tamil Nadu prison for five years as an undertrial from 2008 to 2013,
Murugeswarisays that water was so scarce that they had to choose between washing
themselves and their clothes.
Overflowing with prisoners, with one waterless clogged toilet for every 100
inmates, where bad odour becomes a part of one's life and food is severely rationedIndia's jails are less correctional centres and more crime dens where 'bladebaazi' (the
use of surgical blades to settle scores) is rampant and and extortion extensive. There
are violent fights over even a bucket of water.
What's worse, 70 per cent of the total 300,000 inmates in India's 1,356 prisons
have not been convicted of any offence. They are undertrials, most of them victims of
police high-handedness and a grindingly slow judicial system. Of them, nearly 2,000
have spent more than five years behind bars without being convicted of any crime. If
one juxtaposes these figures with the overall conviction rate in the country-a measly
6.5 per cent-the injustice of the system stands starkly exposed.
An extensive investigation by India Today reporters across the country has
exposed a dark sub-culture thriving in jails across the country, not very different from
the murky underworld of organised gangs and criminals. In the absence of proper
legal aid, the poor and the vulnerable, especially women and youngsters, unwittingly
become part of the sordid system.
Senior advocate AnuNarula, who works with the women inmates of Tihar jail,
says that with long periods of incarceration for undertrials and lack of family support,
many women have no choice but to depend on fellow prisoners, convicted of serious
crimes like pushing drugs and immoral trafficking. "They unwittingly get sucked into
a world of crime,'' Narula says. In an environment where only the toughest survive,
new inmates are forced to learn the ropes in no time. "After a year in jail, an
6
Four 'VIP' inmates at Bangalore central jail, serving life for murders, were
found routinely going out for a meal as well as to broker land deals. The richer
inmates even "hire'' the poorer ones to do menial jobs, including cleaning and
sweeping the cell, washing clothes and filling water. A Tiharundertrial Rashid, after he
missed a court date in 2008, explained at the next hearing that he could not appear
because he was busy working for MP PappuYadav. Underworld don Abu Salem had
managed to get several facilities in his Arthur Road jail cell in Mumbai. When the
then minister of state for home Ramesh Bagwe visited the jail after gangster Mustafa
Dossa attacked Salem in July last year, he was shocked to find a "little paradise''.
Salem's cell had marble flooring, an attached bathroom, bed, utensils and posters of
Bollywood actresses. He had managed to keep the jail staff happy. Dossa's cell had
supplies of fruit to last 10-12 days. Salim Sheikh, an aide of underworld don
ChhotaShakeel, gained 5 kg after a two-year jail stint.
However, money can be a double-edged sword. It buys little luxuries but it
also attracts extortion gangs. The biggest extortion ring or 'bladebaaz' gang in Tihar
jail run by Romesh Sharma-believed to be a Dawood Ibrahim associate-was exposed
after a high-profile undertrial made a formal complaint against the demands and
threats by gang members in March 2013. Now out on bail, the inmate made the
complaint after he was attacked twice with surgical blades in the high-security jail
van, which ferries prisoners for their court dates. The gang had demanded Rs.3 crore
as protection money. The inmate was saved by the jail staff in the van but some others
were not as lucky. Notorious pimp Kamaljeet, charged under Maharashtra Control
of Organised Crime Act (MCOCA), had his face slashed in Patiala House court in
July 2006, and is believed to have coughed up Rs.10 lakh. According to jail
authorities, Sanjeev Nanda, convicted in the BMW hit-and-run case, faced extortion
8
demands and had complained about it. Even the Jessica Lall case convicted Manu
Sharma complained of extortion demands.
Jail authorities, however, refuse to take responsibility for the behaviour of
inmates. Jharkhand inspector general of prisons (retired) SabhapatiKushwaha says
that barring a few exceptions, jails have become orphans in most states.
"While large-scale recruitment takes place to staff police ranks, there is no
such exercise undertaken for jails. The staff are a minority in most jails. So they
largely let the inmates do what they want, to buy peace with them,'' he said. The
bribes make things smoother. Kushwaha concedes that the Government's indifference
to the condition of jails defeats the basic purpose of crime control.
In the women's Jail No. 6 of Tihar, where Kanimozhi was lodged till she was
shifted to a special cell in the assistant superintendent's office, nearly 90 per cent of
inmates are undertrials. Many are often acquitted, but only after they have suffered.
MadhuDiwanchand, 46, was recently acquitted of charges of murdering her husband
after she had spent six years in jail, separated from her two children. In Jail No. 7,
which houses young adults between 18 and 21, more than 95 per cent of the inmates
are undertrials. There is the poignant case of 20-year-old Dinesh, who was granted
bail in July 2010, two years after his arrest. However, he continues to be in prison
since there is nobody to provide him surety. ``My family is in Azamgarh in Uttar
Pradesh. I sent them a letter when bail was given to me but I have got no response. I
don't even know if they have got the letter,'' he said, his eyes brimming over.
Helplessness, frustration and psychological disorders are common. With
limited jail staff, the overcrowded barracks become difficult to manage and enforcing
discipline is next to impossible. A doctor in Gopalganj jail in Bihar, Budhdeo Singh,
9
was beaten to death in the prison premises on May 29 by the inmates, after he refused
to declare seven life convicts "sick''-a tag that would have stopped their transfer to a
high-security jail. The other jail staff on duty just stood and watched. Dr Singh's wife
Reena, who has two physically challenged sons and a widowed daughter to look after,
has refused the Rs.10 lakh compensation given by the Government. She wants the
government to include the jail officials in the list of the accused.
Senior advocate and Vice Chairman of the Law Commission of India, K.T.S.
Tulsi, says that the trend to deny bail as a form of punishment is repugnant to basic
bail jurisprudence. "Only those undertrials should be remanded in custody who are
likely to flee or are likely to commit similar offences. An accused is presumed
innocent till finally pronounced guilty,'' he says. In India, since the conviction rate is
poor, pre-bail detention is used as punishment, he says. Overcrowding of jails had to
be factored in. "Each judge should have a ready reckoner on prison capacity and
prisoners lodged while deciding bail applications. If there is no room in prison, bail
should be mandatory. Potentially less dangerous accused should be bailed to
accommodate hardcore criminals. It should be an offence to remand an accused to a
prison in which there is no space. It should be unlawful to pack prisons like sardines,''
Tulsi said.
In 1982-83, the All India Jail Reforms Committee under Justice A.N. Mulla
came out with suggestions for prison reform. Yet to be implemented, the committee
had recommended that undertrial prisoners should be lodged in separate facilities,
away from convicted prisoners. It had also called for quick trials, simplification of
bail procedures and suggested that bail should be granted to the accused as a matter of
right unless the prosecution could prove that releasing the accused on bail endangered
the security of society.
10
Some 1,000 women jailed in a space meant for 150, each making do with one
bar of soap to bathe and to wash clothes for a whole month. Their children
grow up knowing little about the outside world, unable to recognise even cats
and dogs.
This is the world of women prisoners in the two jails that house them in and
around Mumbai, one at Byculla and the other at Kalyan. Jailors and social
workers say their plight is made worse by the indifference of their families.
Its tragic but true that women prisoners are ostracised much more by their kin
than men are. Turn to Page 2 to read about the daily struggle of people we
of urinary tract infections. At night, they crowd into a space meant for 150.
Nearly 1,500 women from in and around Mumbai are incarcerated in two city
This means no one comes forward to help them with, for instance, another bar
of soap. No one offers medical aid or moral support. No one explains where
clout among some junior staffers. The superintendent then got her transferred
official says.
The job of looking into the problems of prisoners is the probation officers
(PO), appointed by the department of women and child development. But
there is a shortage of POs, and they are often handed other responsibilities, so
13
incarcerated.
Firstly, both Chaibasa and Hazaribag jails are extremely crowded. It is housing
almost three times more than its capacity to hold prisoners. Although we were
not allowed to go inside, the Superintendent herself confessed the
infrastructural lacuna which makes life extremely difficult for the prisoners
inside it.
One reality with which the women prisoners have to live is an obvious
disassociation from her family once she is imprisoned, even if they are under
trial especially when the women are removed from their native district to the
central jail, the family members refrain from meeting them anymore, mostly
due to the distance, financial constraints to travel and also because of the
not), is left alone without any proper legal aid from the government. The
accused have no idea of their lawyers, have rarely met them and hardly receive
any concrete help from them. Many people we met have been granted bail, but
cannot proceed further due to lack of proper legal aid. Moreover, many
women are remaining under-trial for unbelievably long period even for petty
crimes, due to the lack of legal aid. The legal aid and system that exists within
high court, as we gathered, is also in terrible state. The advocates rarely visit
jail and therefore the accused can hardly meet their lawyer before they are
15
exposed while there were no doors at all in the toilets of Hazaribag which
reflects the insensitivity of the jailors about the privacy of the women inmates.
In Hazaribag jail, we got to talk to the inmates more freely. They could also
express more grievances to us. The condition within this jail is perhaps the
reality in all the other jails as well. No regular classes for the inmates are
carried out. Most of the inmates within are illiterates. Although the jail
authority claimed the presence of a library for the inmates, they however
informed that books are not made available to them despite repeated demands.
There was also no provision for recreation, outdoor, indoor games at all for the
inmates. The visit of the doctor is also shockingly irregular. The jail also does
not provide the prisoners with sanitary napkins. Moreover the doctor of the
female ward is clueless about that! There is a serious problem of safe water
within this prison.
should be treated as any other criminals, but the jailor of the Chaibasa jail refused to
allow us meet the ones who are booked under 17 CLA, while we did meet the other
inmates, who were booked under other charges. The jail authority of Ranchi denied
the presence of any one booked for being a Maoist in the Jail. In Ranchi jail however
there is special wards for some prisoners called upper male wards and upper female
wards. These wards from outside looked extremely well kept like mini-bungalows.
According to the jailor of Ranchi, only economically well-off and people with high
social status can avail those wards. This discrimination and the mindset were
shocking too. Prisons are nowadays said to be a place for so called reforms but
even to do this reform the jail custodians should have the proper perspective and
sensitivity themselves. In these jails however, there is no scope for even the so-called
reform to take place.
17
CHAPTER-2
CONSTITUTIONAL STATUS OF WOMEN IN INDIA
Constitution of India does not provide specific guarantee to the women
prisoners.7 However, the Indian Constitution gives the status of equality to the
women. The Founding Fathers of the Indian Constitution gave serious thought to
protect and promote the rights of Women and Children. This is amply reflected in the
Preamble which contains the ideals and aspirations of the people of India. One
of the golden ideals is the equality of status and of opportunity.8
Our Indian constitution was written in an era when the social condition of
Indian women was very poor and need an urgent reform. She was mentally and
physically tortured in the society. She was struggling to find her social status and a
respectable place in the society. At that time Indian women were in a need of some
laws in order to improve their social position and to ensure proper safety against
mental and physical torture. At that time Dr. B. R. Ambedkar, author of our Indian
constitution, took certain constructive and much needed steps in favor of Indian
women to make them independent and socially strong and today we can see the
revolutionary change in the position and image of Indian women.
Due to the revolutionary changes brought by our constitution and efforts made
by Indian women, they have earned themselves a respectable position in the society.
Now they are treated equally with men. Today women are everywhere and to be
7 http://Woman & Child Prisoners\Welcome to ANSWERING LAW India's Premier Portal
for Lawyers, Students, NRI's and Public RIGHTS OF PRISONERS - A MYTH OR
REALITY- AISWARYA.T,3rd Semester, NUALS.htm
8 http://airwebworld.com/articles/index.php?article=1245
18
precise women are in space, women are in corporate, women are in politics, women
are in entertainment field, women are in defense field and the list goes on.
It is indeed a matter of pleasure that the position of women has improved in
the last four decades. But still somewhere I feel that the presently Indian women are
again a bit struggling to maintain their dignity and freedom. Mental and physical
torture of women has again become common and that is why they have started feeling
unsafe. As per my personal understanding with the proper knowledge of legal and
constitutional rights of a woman their position can be further strengthen in the society.
There are lots of provisions in our law which protects a woman from mental and
physical torture. Now let us discuss some of the problems women are facing along
with remedy provided by the law.
Constitution of India under Article 14 provides equal protection of laws to the
women in India and Article 15 prohibits the discrimination on grounds of sex. But
still Indian women prisoners are facing a number of problems. Government of India
passed the Protection of Human Rights Act, 1993 and constituted a body known as
the National Human Rights Commission for promotion and protection of human
rights. Part IV of the Constitution of India sets out the Directive Principles of State
Policy which give direction to the State to provide economic and social rights to its
people in specified manner.9
India has also ratified various International Conventions and Human Rights
Instruments committing to secure equal rights of women. Key among them is the
ratification of the Convention on Elimination of All Forms of Discrimination
9 http://www.rwi.lu.se/pdf/seminar/manoj05.pdf
19
10 http://wcd.nic.in/
11 http://www.unhcr.org/refworld/pdfid/3ae6b3970.pdf
12 http://www.un.org/en/documents/udhr/index.shtml#a
13 http://www2.ohchr.org/english/law/ccpr.htm
20
tortured in the prisons. Imprisonment does not spell farewell to fundamental rights,
the Supreme Court of India has made it very clear in many judgements that except for
the fact that the compulsion to live in a prison entails by its own force the deprivation
of certain rights, like the right to move freely, a prisoner is otherwise entitled to the
basic freedoms guaranteed by the Constitution.14
Prisoners cannot be treated as animals and are not to be punished except in
accordance with Laws.15
Government and Government run institutions. Let me share few good names
from political and corporate field. These names are Chandakochhar, Indira
nooyi, Sonia Gandhi, SushmaSwaraj and this never ending list goes on.
4. Article 39:- Article 39 of constitution of India ensures the benefit of the
directive principles of state policy to the women. Directive principles of state
policy mean guiding principles for the framing of laws by the government at
state level. Article 39(a) of directive principles of state policy ensures and
directs a state to apply policies which focus on a men and women have an
equal right of adequate means of livelihood and article 39(c) ensures equal pay
for equal work for both men and women.
5. Article 42:- Article 42 of constitution of India caste a duty on every employer
to ensure just and humane conditions of work and for maternity relief. In
reality the position and treatment of women in corporate offices is really bad
and in fact they are exploited by their seniors and bosses. In this scenario the
provisions of article 42 are very important and now it is duty of employer to
provide good working conditions to all the employees.
6. Article 243:- Article 243 of constitution of India ensures reservation of seats
in gram panchayat for women. This opportunity of being a part of local level
arbitration process has improved the social conditions of women in village
areas.
These are few rights which are given by our constitution to the Indian women
in order to ensure their dignity and social respect. Further to protect these
23
constitutional rights there are numerous legal steps that have been taken by the state
Governments which we will discuss in detail through this article.
24
voluntary sexual relationship with a married person other than the spouse. The
offence of adultery is dealt with by section 497 of the Indian penal Code,
1860, which says adultery means sexual intercourse of a man with a married
woman without the consent of her husband when such sexual intercourse does
not amount to rape. However we may find different meaning of adultery in
different laws in different countries. Initially only men were punished under
the law of adultery in India but now men and women both are equally
responsible for committing the crime of adultery. As per section 497, the
offender shall be punished with imprisonment for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be
punishable as a partner in crime.
2. Child marriage :-Child marriage is a very awful offence against child as it
does not only harms the future of child but also damage social values. Further
the doctors have also revealed that child marriage is a very big reason for bad
health condition for girl child. Child marriage restricts the social development
along with reduction in the educational and employment opportunities in the
global market. It was like a burden on society to practice this unwritten
custom. The major step was taken by the Law Commission of India by fixing
the minimum age for marriage which is 18 yearsfor girls and 21 years
forboys. Another major step was mandatory primary education and moreover
for girls provision for free education provided by the Government of India.
3. Female feticides: -Female feticide means identifying and killing of female
fetus before they take birth. This is the most brutal way of killing women. The
custom of female feticide is practiced by the society form ancient times and it
26
amendment
in
Pre
conception
and
Pre
Natal
Diagnostic
27
Traffic (Prevention) Act 1956. There are few commissions are made by state
Government to save women and specially girls to protect them from this
practice.
5. Domestic Violence:- Domestic violence has become a very serious problem
for women. In general the term Domestic violence means mental, physical,
emotional and economical harassment of a woman by family members. For
the purpose of domestic violence family includes spouse, his mother, father,
brother, sister, his relatives and sometimes even friends. We call ourselves
educated and talk too much about morality, ethics and civilization and expect
others to be good to create a dream world but forget that without giving due
respect to the women, a nations growth is impossible. Now in India domestic
violence is recognized as a criminal offence under section 498A of Indian
Penal Code, 1860. Domestic violence means cruelty by husband towards
women. Cruelty can be done by physically, mentally, economically or
emotionally.
An act called Domestic violence Act, 2005 was introduced to handle the
cases of Domestic violence in India. This act is a very noteworthy attempt in
India to recognize domestic violence as a punishable offence. Before the
introduction of this act two kinds of remedies were available to a women
affected by Domestic violence. These two remedies were divorce through civil
courts and application of section 498A through criminal courts.
6. Eve teasing: - It is a general perception that eve teasing is not a big crime like
rape or murder and may be because of that we dont take it seriously. But from
a womens point of view eve teasing is also a very big crime as this activity
28
does make her feel uncomfortable most of the times. Eve teasing usually
involves teasing women, passing comments on women and making vulgar
signs (eshare). A woman has to face this kind of irritating behavior and deal
with this on daily basis. She cant even fight back due to fear of disrespect by
others as everyone will blame her and say that you must have done something
to invite them. In case of eve teasing girl should not remain silent and raise her
voice. She should inform her family members and simultaneously file a
complaint in the nearest police station. In this case family should also support
the women instead of locking her at home.
7. Acid throwing:- Recently the issue of acid throwing on girls has also become
a big issue. There are few types of acids and all are very dangerous for human
flash and burn. This acid attack sometimes is so dangerous that even bones
and eyes are also got damaged due to acid. Few victims are forced to leave
their education or occupation due to the results of acid throwing. Now a days
this has become very easy for people to get these acids and the cases of acid
throwing has become very regular in daily life.
It is quite sad that despite of so many cases of acid attacks on women, we do
not have a dedicated and specific law to deal with such cases. The National
Commission for Women (NCW) is asked for a well defined law to deal with
such casualties. The NCW has introduced a draft of the Prevention of Offences
(by Acids) Act, 2008, which is with now with the Union Ministry of Women
and Child Development for the purpose of vetting and final recommendations.
Once the Union Ministry of Women and Child Development approved the
29
Bill, it will be sent to the law ministry to be tabled in Parliament. After the
approval in Parliament it will become applicable as law.
8. Fraudulent Marriage:- Before going into the details of Fraudulent Marriage
let me explain the general meaning of fraud in relation to crime against
women. Fraud means hiding something or giving false impression about
something which a person knows that knowing the fact may harm his
prospective marriage. The scope of fraudulent marriage has increased in the
recent past as in India parents of a girl are very fond of NRI son in law.
Parents want to settle their daughter with any rich NRI. Parents of brides dont
inquire too much about the NRI groom as they are happy that their daughter is
going to marry a rich person who will fulfill her all demands and she will live
a luxurious life in abroad. There blind faith on NRIs may invite problems like
false commitments, false details, second marriage and infertility. This is not
necessary that fraudulent marriages only took place in case of NRIs even
Indian grooms also do the same for money or for boy child or for any other
reason.
9. Exploitation at work place:- Though we all accept the truth that in todays
world women has come out of her image of house wife and proved herself as a
better administrator then a man. In all sectors women are working hard and
getting awards and rewards for that. She has crossed all the boundaries and
shut the mouth of all those peoples who has ever questioned her working
caliber.
But she has to pay a very heavy price of her success as she has to face
exploitation at work place do we ever think what boundaries she has crossed
30
and how. What she had paid go get this position and power? How much pain
she has felt to become this person.
10. Rape, murder: - Rape is another very serious crime against women and this
crime is increasing day by day like anything. Reporting of rape and abduction
cases has become very common in print and electronic media which is indeed
a very sad affair for all of us. Increasing rape cases are enough to prove that
our moral values are still very low and we still to learn how to respect the
dignity of women at large.
In simple terms the word Rape means sexual intercourse or sexual
penetration, by another person without the consent of the other person or
victim. Provisions related to rape are given in section 375 and 376 of the
Indian Penal Code, 1860. Section 375 explains the pre-condition which are
necessary tp prove the offence of rape whereas section 376 provides
punishment for the offence of rape. As per section 376, whoever commits the
offence of rape shall be punished with imprisonment of either for a term which
shall not be less than seven years (7) but which may be for life or for a term
which may extend to ten years and shall also be liable to fine.
11. Dowry:- The system of dowry is another social evil which dragging women
back from 100 of years as this evil has a very long history especially in India.
Various dowry based domestic violence cases has been reported by media.
There are ample legal provisions in India to provide relief to women in case of
dowry based domestic violence cases. Civil law of India has prohibited the
payment of dowry in the year 1961. Further Indian Penal Code, 1860 has
introduced Sections 304B and 498A, which allows women to file complaint
31
and seek restoration of her rights from serious harassment by the husband's
family.
Dowry is one of the strong and biggest reasons of increasing domestic violence. Every
year thousands of dowry deaths along with mental trauma cases reported and
registered in India. In case of inadequate dowry, incidents like burning, suicides,
physical and mental torture of women is very common by husband and his family.
Keeping in view the increasing cases of dowry deaths another legislative provision
called Protection of Women from Domestic Violence Act 2005, was introduced in
order to reduce domestic violence cases and to protect women's rights.
33
tried my best to cover all the constitutional, judiciary and legislative rights of women
against the crimes which they are facing from quite some time now.
CHAPTER-3
WOMEN PRISONERS RIGHTS
Women prisoners have many rights. They cannot be debarred from their basic
human rights and freedoms guaranteed by the Constitution of India. The Supreme
Court in the case of Sunil Batravs Delhi Administration 16 held that whether inside
prison or outside, a person shall not be deprived of his guaranteed freedom save by
methods right, just and fair. The court process casts the convict into the prison
system and the deprivation of his freedom is not a blind penitentiary affliction but a
belighted institutionalization geared to a social good. The court has a continuing
responsibility to ensure that the constitutional purpose of the deprivation is not
defeated by the prison administration. There are a number of rights of women
prisoners which are provided by different committees appointed for prison reforms
and also by United Nations. These rights must be incorporated in the Prison Act
1894. Since, Prisons is a State subject under Entry 4 of the State Subjects List of
the Seventh Schedule to the Constitution of India. 17Hence, the management and
administration of prisons come under the domain of the State Governments. Thus, the
respective governments while making Prison Manuals should consider all the
provided guidelines. The different types of human rights, constitutional rights and
statutory rights of women prisoners are discussed as under:
1. The search and examination of the female prisoners shall be carried out by the
Matron under the general or special order of the Medical Officer;18
2. The female prisoners have the right to live separate from the male prisoners.
Section 27(1) ofthe Prison Act 1894 provides that in a prison containing
female as well as male prisoners, the females shall be imprisoned in separate
buildings or separate parts of the same building, in such a manner as to
prevent their seeing or conversing or holding any intercourse with the male
prisoners; this right is also provided by Rule 8(a) of Standard Minimum
Rules for the Treatment of Prisoners.
3. About the maintenance of certain prisoners from private sources, section31 of
the Prison Act 1894 provides that a civil prisoner or an unconvicted criminal
prisoner shall be permitted to maintain himself, and to purchase, or receive
from private sources at proper hours, food, clothing, bedding or other
necessaries, but subject to examination and to such rules as may be approved
by the Inspector General.
4. About supply of clothing and bedding to civil and unconvicted criminal
prisoners section33(1) of the Prison Act, 1894 provides that every civil and
unconvicted criminal prisoner unable to provide himself with sufficient
clothing and bedding shall be supplied by the Superintendent with such
clothing and bedding as may be necessary.
5. All the prisoners have the basic human rights such as hygienic food, shelter,
medical facilities and facilities of reading and writing. They must be treated
with dignity in the custody and cannot be isolated in a separate cell, except on
medical grounds or if he/she has proven to be dangerous to other prisoners. 19
It is the human right of a pregnant lady to have full facility (medical and
18 The Prison Act, 1894, Section 2, 1894, Section 24 (3).
19 http://Woman & Child Prisoners\Rights of Prisoners in India.htm
35
personal) at the time of delivery. Women prisoners who are pregnant cannot be
provided the full facilities during the pregnancy. Hence at the time of delivery
they can be released on bail for the delivery.
6. The Standard Minimum Rules for the Treatment of Prisoners provide
under- Rule 53:
(1)that 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.
(2) No male member of the staff shall enter the part of the institution set aside
for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women
officers. This does not, however, preclude male members of the staff,
particularly doctors and teachers, from carrying out their professional duties in
institutions or parts of institutions set aside for women. Rule 23 (1) provides
that in womens institutions there shall be special accommodation for all
necessary pre-natal and post-natal care and treatment. Arrangements shall be
made wherever practicable for children to be born in a hospital outside the
institution. If a child is born in prison, this fact shall not be mentioned in the
birth certificate.
(4) Where nursing infants are allowed to remain in the institution with their
mothers, provision shall be made for a nursery staffed by qualified persons,
where the infants shall be placed when they are not in the care of their
mothers. Rule24 that the medical officer shall see and examine every prisoner
as soon as possible after his admission and thereafter as necessary, with a view
particularly to the discovery of physical or mental illness and the taking of all
necessary measures; the segregation of prisoners suspected of infectious or
contagious conditions; the noting of physical or mental defects which might
36
A.R.
Desai,
Director
NirmalaNiketan, Bombayin
of
the
College
of
Social
Work,
State of
21 http://articles.timesofindia.indiatimes.com/2008-05-23/india/27771005_1_womenprisoners-ncpcr-legal-aid
22 http://Woman & Child Prisoners\'Jails should reform prisoners' - Times Of India.htm
23
24 AIR 1980 SC 1579
38
expeditiously as possible. Similarly, mere sentence does not restrict the right
to freedom of religion.26
12. Section 54 of the Code of Criminal Procedure 1973 provides for
examination of body of an arrested person by a registered medical practitioner
at the request of the arrested person in case of torture and maltreatment in lock
ups. But generally women prisoners are not aware about this right. held that
speedy trial is a fundamental right implicit in the guarantee of life and
personal liberty enshrined in Article 21 of the Constitution.27
13. Before sending a woman who is pregnant to a jail, the concerned authorities
must ensure that jail in question has the basic minimum facilities for child
delivery as well as for providing pre- natal and post-natal care for both, the
mother and the child. Gynaecological examination of female prisoners shall
be performed in the District Government Hosputal.28
14. The Articles 72 and 161 of the Indian Constitution add a human touch to
the countrys judicial process by conferring powers on the President and the
Governors of States, respectively to grant pardon or show mercy to the
prisoners.29
This is based on the proceedings on the workshops on Prisons and Human
Rights organised at Bhopal by the Commonwealth Human Rights Initiative
(CHRI) in collaboration with the Madhya Pradesh Human Rights Commission
(MPHRC). The workshop, conducted on the 25th and 26th of April 1998, was
26 (1980 ) 1 SCC 81. http://www.lfhri.org/index.php/judgements/human-rightsjudgements/22-speedy-trial
27 http://www.vakilno1.com/bareacts/CrPc/s54.htm
28 R.D. Upadhyayvs State of A.P. &Ors, AIR 2006 SC 1946.
29 http://Woman & Child Prisoners\Prison Law and Regulations Indian Law.htm
40
attended by representatives from the Law Commission of India, the National Human
Rights Commission of India (NHRC), MPHRC, Madhya Pradesh State
Commission for Women, CHRI, retired and serving officers from the prisons and
police departments, ex- prisoners and their family members, members from NGOs,
academicins, bureaucrats, journalists and lawyers.
The main objective of the workshop was to sensitise the administration to
human rights issues; suggest mechanisms to monitor prison conditions effectively and
ensure accountability in respect of violation of human rights; discuss the problems of
prison administration and ways to motivate and develop prison staff.
Inaugurated by Mr. Justice M.N. Venkatachaliah, Chairperson of the
National Human Rights Commission, the workshop was divided into four sessions
with two sessions on each day. The first days sessions, presided over by Mr. R.K.
Kapoor, former Director, Intelligence Bureau and Mr. Justice Awasthy, Member MP
Human Rights Commission, covered issues pertaining to the modernisation of prison
administration and motivation and development of prison staff. The second days
sessions, chaired by Justice Leila Seth, Member, Law Commission of India,
discussed the subject of prisoners rights: the need for transparency and
accountability; and monitoring of prison conditions.
The need for prison reforms has come into focus during the last few decades.
The Supreme Court and the High Courts have commented upon the deplorable
conditions prevailing inside the prisons, resulting in violation of prisoners rights. The
problem of prison administration has been examined by numerous expert bodies set
up by the Government of India. The most comprehensive examination was done by
the All India Jail reforms Committee of 1980-83, popularly known as the
41
MullaCommittee. The National and the State Human Rights Commission have also,
in their annual reports, drawn attention to the appalling conditions in the prisons and
urged governments to introduce reforms.
Prisoners rights have become an important item in the agenda for prison
reforms. This is due essentially to the recognition of two important principles. Firstly,
the prisoner is no longer regarded as an object, a ward, or a slave of the state, who
the law would leave at the prison entrance and who would be condemned to civil
death.30 It is increasingly been recognised that a citizen does not cease to be a
citizen just because he has become a prisoner. The Supreme Court has made it very
clear in many judgements that except for the fact that the compulsion to live in a
prison entails by its own force the deprivation of certain rights, like the right to move
freely or to practice a profession of ones choice, a prisoner is otherwise entitled to the
basic freedoms guaranteed by the Constitution.31 Secondly, the convicted persons go
to prisons as punishment and not for punishment.32 Prison sentence has to be carried
out as per courts orders and no additional punishment can be inflicted by the prison
authorities without sanction. Prison authorities have to be, therefore, accountable for
the manner in which they exercise their custody over persons in their care, specially
as regards their wide discretionary powers.
30 Dr. Kurt Neudek, The United Nations in Imprisonment Today and TomorrowInternational Perspectives on Prisoners Rights and Prison Conditions eds., Dirk van ZylSmit
and FriederDunkel; Kluwer Law and Taxation Publishers, Deventer, Netherlands, 1991.
31 Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 1514
32 Jon Vagg. Prison System- A Comparative Study of Accountability in England, France,
Germany and the Netherlands, Clarenden Press, Oxford 1994
42
unsatisfactory conditions prevailing inside the prisons and the failure of the prison
authorities to provide an environment which is conducive to the maintenance of
prisoners rights, partly rooted in the belief that the prisoners do not deserve all the
rights and the protections that the constitution provides to all citizens. Besides being
morally wrong and legally invalid, this belief does not show adequate recognition of
some basic facts about the prison population.
Out of the total population of 2,26,158 in the country. 1,63,092 were
undertrials.35 Thus 72% of the prison population is not even convicted of any crime.
Secondly, even those who are convicts, a large number of them are first time offenders
involved in technical or minor violations of law. Very few are recidivists or hardened
criminals.36 Also, as was observed by the Mulla Committee, a majority of the
inmates come from the underprivileged sections of the society, as persons with the
means and influence generally manage to remain beyond the reach of law even if they
are involved in violation of law.37
It is against the above backdrop that some important rights of the prisoners
were discussed in a paper presented at the workshop by Ms. Marion Macgregor of
the Commonwealth Human Rights Initiative (CHRI).38 The paper provided an
outline of some important rights of prisoners, like the Right to Live with Human
Dignity, Right to Punishment as Prescribed by Law, Right to be Free of Fetters or
35 Source: Ministry of Home Affairs, Government of India
36 J Guha Roy, Prisons and Society: A Study of the Indian Jail System, Gian Publishing
House, New Delhi. 1989
37 Report of the All India Committee on Jail Reforms, 1980-83
38Prisoners Rights Need for Transparency and Accountability CHRIs paper presented
at the Workshop
44
earn livelihood through labour, and that his long terms in prisons had not equipped
him with vocational skills that would sustain him as a skilled worker. He also claimed
to be a victim of social stigmatisation which made rehabilitation all the more difficult.
Mr. Koshti complained that those with money, power and clout are privileged with
remission of sentences, better food, medical care etc. He alleged that often on
payment of money to members of staff, prisoners are given special diet or admitted to
hospital even though they do not have access to these facilities.
Mr. Koshti blamed the MPHRC for its failure to bring about any change in
prison conditions and complained that all his petitions have thus far been ignored.
The second ex-prisoner, Mr. Patel, complained of over crowding as well as of
poor medical facilities. He had suffered due to absence of adequate medical care in
the prisons, which resulted in his losing one eye. He also spoke about the incidence of
lunacy resulting from mental strain in prisons. Mr. Patel alleged that it was local
bosses in the prisons having money or muscle power or political clout, who were
invariably given privileged treatment. The delegates were informed about the
compliant system and that prisoners could write to their relatives or friends or to
relevant authorities about their problems. However, the letter were to be given open to
the warder at the weekly parade, thus suggesting a lack of privacy which could
account for the loss of several letters containing complaints of prisoners.
Mr. Patel informed the delegates that the system of monitoring prison
conditions was extremely ineffective. In his experience, visitors, official or non
official, hardly ever came and even if they did, their check was merely routine, while
most of their time was spent chatting with the prison authorities. He also mentioned
46
that there was hardly any legal aid available to prisoners and that lawyers rarely
visited the prisons to give legal advice to the prisoners.
The next person who spoke was the younger brother of Mr. Patel. He said that
he had visited his brother frequently in the jail during the eight year period. The main
problem faced by him was to avail his visiting rights without bribing prison staff.
Although bribes were not openly asked for, it was an unspoken rule that the visiting
time was in direct proportion to the money that one secretly paid to the warder. One
could meet ones relatives without paying bribes, but the frequency would be greatly
reduced and the time allowed would be very short. In his experience, on payment of a
bigger amount, one could even go inside and talk to the prisoner from the visitor and
provides little privacy. He also alleged that often the food or some other items sent to
the prisoner did not reach the person. Much of it was either stolen or consumed by the
prison staff.
The last speaker in this section was Mrs. MalatiMaurya whose husband was
convicted and sentenced to the life imprisonment. Mrs. Maurya explained her plight
as a woman without financial or social support, while having to support two children
and an aging mother-in-law. She gave instances when she was not allowed to meet her
husband and had to pay bribes to various members of the prison staff. Not only was
she shown little sympathy but was also humiliated at times by the staff. Mrs. Maurya
complained that in spite of a number of petitions on her part to stay the transfer of her
husband to another prison, he was moved far away from their home town, making
visits all the more difficult. Mrs. Maurya also cited the instance when her husband
was not let out on leave despite his mother being ill and was finally only granted leave
for the day when she died.
47
3.4 OVERCROWDING
Overcrowding in Indian prisons is seen as the root problem that gives birth to
a number of other problems relating to health care, food, clothing and poor
living conditions. Mr. Justice Venkatachliah, while inaugurating the
workshop, referred to this problem. He said that the prison population of about
2,24,000 in India in relation to the total population of the country was one of
the lowest in the world. He pointed out that while some jails were
comparatively empty, there were others which were overcrowded by about
three times the capacity, though the percentage of overall overcrowding was
about 9%. In some of the prisons inspected by Justice Venkatachaliah, the
problem of overcrowding was so acute that inmates often had to sleep in shifts
overcrowding.
According to Dr. Hira Singh, Consultant, NHRC, optimum population
capacity of prisons needs to be assessed and provisions made accordingly.
Thus, no central jail should hold more than 750 prisoners and no district jail,
more than 400. However, it was observed that even though in some cases as in
MP, where more space is being commissioned and larger prisons are being
constructed, the problem of overcrowding persists. According to a study done
by the MP Prison Department, prison population is rising by 6.92% a year. As
per expansion plans of the state government and presuming that all plans are
completed, the total capacity of the prisons in MP would go up to
20,931.Although this seems to be a huge growth in capacity terms, the extent
of overcrowding would still be to the tune of 56.43% by the year 98-99, and
compoundable.
Delay in completing cases is responsible for overcrowding in jails. An
important factor responsible for delaying trials is the failure of the agencies to
provide security escort to the undertrials to the courts on the dates of trial
hearings. The prison department blames the police for failing to provide
adequate escort when required. The police, however, have their own problems
and cite law and order requirements and security duties for VIPs as having
overriding priority in deciding deployment of manpower. The only solution
tothe problem is for the State Government to provide trained manpower
exclusively for prison departments requirement of escorting prisoners. It was
suggested that the armed police sanctioned for this purpose should always be
Some important issues about providing legal aid to the needy and poor were
discussed in a paper presented by Mr. N.K. Jain, Member Secretary, State
Legal Service, Madhya Pradesh. Mr. Jain mentioned that legal aid was a
fundamental right of an indigent person in the USA and in UK. In India also,
the State is obliged to provide legal aid to the poor, as the Indian Constitution
makes it one of the Directive Principles of the State Policy to do so. However,
as 70% of the prison population is illiterate, lacking an understanding of their
50
rights, the poor do not always get the benefit of the provisions of law in this
regard. In addition, though there are panels of lawyers, at least in district
courts in Madhya Pradesh, the panels do not have good and efficient lawyers.
Mr. Jain, in his paper, made some suggestions to speed up the trial process so
that the population of undertrials is reduced. Though Section 309 Cr.P.C.
suggests that the trial proceedings should be held as expeditiously as possible
and once the examination of witnesses has begun, it should be continued on
day to day basis till completion of the case, this does not happen. Mr. Jain
suggested that an amendment should be made in the Cr.P.C. to make it
possible for an undertrial prisoner to plead guilty at any stage of the trial. It
was further suggested that the LokAdalats should deal not only with
compoundable cases but also with cases where the accused pleads guilty. He
advocated strongly for the introduction of the system of plea bargaining by
making necessary amendments in laws. It was, however felt by some delegates
that some safeguards would have to be instituted to minimise the scope for
misuse of the plea bargaining system. One could always plea bargain falsely
efficient and easily available, Professor Pande stressed to need for para-legal
staff to work in prisons with both convicts and undertrials. It was further
suggested that there should be greater involvement of LokAdalats in criminal
cases, which at present is limited. Lastly, constant monitoring of the prison
conditions to identify inadequacies and shortcomings of the prison
administration and suggest changes in law to bring about the desired reforms
prison.
Limiting the powers of the police to arrest, applying the principle of bail not
jail in majority of cases and releasing persons on personal recognisance and
adding to the list of compoundable offences would help in reducing
overcrowding in jails.
52
been a disturbing rise in the percentage of HIV positive inmates. Special and
epidemics.
Justice Leila Seth gave a first hand account of the health facilities available to
prisoners, based on her experience as the chairperson of the enquiry committee
set up to investigate the death of Rajan Pillai in Tihar Jail. Health care of
the prisoner should be treated as a special responsibility of the prison
administration as the prisoner, in fact, is handicapped by the inability to
choose the kind of medical treatment required. There is often little provision
for support and succour from family or friends and the prisoner is solely
dependent on his custodians to provide him adequate medical facilities. Quite
often the prison authorities do not take this responsibility as seriously as they
should. Medical checks are routine and complaints of ill-health are not
attended to urgently.
Once again the systemic problems come to surface. For example, the
sanctioned strength of doctors and para-medical staff in many prisons is much
less than what is required. As Mr. G.K. Agarwal, Additional Inspector General
(Prisons), Madhya Pradesh, informed, the Jabalpur Jail in M.P. was sanctioned
a strength of three doctors way back in 1956 when the number of inmates in
that prison was only 550 to 600. Though the prison population now is about
4000, the number of doctors remains the same. Even this limited strength is
53
not always available as there are invariably a large number of vacancies in the
posts of doctors in most prisons. Justice Leila Seth observed that even in a
high profile jail like Tihar, in 1995, out of the seventeen sanctioned posts of
medical officers, only six were occupied. Of these six, two were always on
leave. Therefore, for a prison population of 9000 inmates, only four medical
officers were available, of which 3 worked during the day and one at night.
Non-availability of adequate medical facilities for prisoners is largely due to
the lack of full time doctors as well as lack of basic infrastructure, like well
equipped ambulances, stretchers, dispensaries, hospital beds etc. sometimes,
the prisoner may need expert and urgent medical attention which is not
available within the jail premises. Transporting the sick prisoner out in the
absence of vehicles and escort in districts sometimes poses a problem. For
example, Mr. J.M. Bhagat, Member, Madhya Pradesh Human Rights
Commission, narrated the instance of a prisoner in the Rewa jail, who lost an
eye because the cataract could not be diagnosed and attended to in time.
Sometimes, when the cells are closed, the warder who has the keys to the cells
is not available, as a result of which quick medical aid is not possible in case
of an emergency. Justice Seth quoted an instance where the doctor was
required to administer injections through the bars as they could not have the
cell opened. Thus in many cases, besides lack of resources, it is the existence
of a dehumanised system in the prison which contributes to the problem. It is,
therefore, important to humanise the relationship between the prisoner and the
prison staff so that the latter are sensitised to the needs of the prisoners and
done perfunctorily. Justice Seth suggested that the Mulaizha should be detailed
and thorough, involving check up of all known and unknown ailments. This is
essential as the majority of the prisoners who come from economically
disadvantaged backgrounds rarely have complete knowledge of their ailments.
Justice Venkatachaliah, in his inaugural address, informed the workshop that
the NHRC was evolving a comprehensive format for the initial medical
Little has been done to attend to the special needs of women inside the
prisons. To give one example, the Mulla Committee report of 1983 had
recommended that at every prison where there is a sufficiently large number
of women prisoners, (say, 25 or above), a full time lady officer should be
appointed. At other prisons arrangement should be made for part time lady
56
medical officers.41 There are 120 prisons in Madhya Pradesh and none of
them has provided for a lady doctor for women prisoners, leave alone
providing extra medical facilities to pregnant women.42 Justice Seth suggested
that women should be allowed to return to their families for delivery, as that
time they need special support and care which they cannot get in prisons.
Then there is the problem of rehabilitation. Women suffer from a low social
and economic status within their own families and find it harder to get back
into society upon release than men. It was suggested that such destitute
women should be equipped with vocational skills and protective homes to be
established to provide shelter to them after release.
Mr. J.M. Bhagat mentioned in his paper43 that a majority of women detained
in safe custody are not the standard criminal offenders but those who have
escaped from a repressive environment of their homes, brothels or criminal
gangs. He suggested that female prisoners should be imparted prison
education and training programmes, irrespective of their status as convicts or
undertrials, to enable them to face the world after release.
offenders, who are housed with other hardened criminals, often come out of prison
only to commit far more serious crimes than they had done earlier.
At present, prisoners in Indian jails are classified into different classes not on
the basis to their criminal record but according to their social, economic and
educational background. This, in fact, is a legacy of our colonial past which
we have not shed. It is in this connection that a reference was made in the
workshop to the report of Justice Santosh Duggal Committee appointed by
the Lt. Governor of Delhi. This Committee was appointed on the orders of
the Supreme Court in a civil writ petition in which the existing system of
Detenues,
Security
Requirements,
Disciplinary
or
CHAPTER-4
AN OVERVIEW ON PRISON ADMINISTRATION
The workshop acknowledged that protection and promotion of human rights in
prisons was linked to the service and working conditions of the prison staff, though it
58
was also stressed that the poor working conditions could not be regarded as an excuse
for violation of prisoners rights.
prison walls.
The workshop generated some debate regarding the post of convict
warders which the new Prison Bill drafted by the NHRC seeks to
abolish. This post is occupied by convicts, who, on the basis of their
good conduct, are given charge of certain duties that would normally
have been undertaken by the warders. This, according to the prison
staff, not only works as an incentive to the prisoner who is entitled to
remission of sentence as a holder of the post, but also helps lessen the
45Role of Prison Personnel and their Problems A Paper presented in the workshop by Mr.
G.K. Agarwal, Additional IG (Prisons), MP
61
system.
Issues of remuneration and promotion opportunities of the prison staff
were discussed. The prison services, especially in the lower ranks, are
mostly poorly paid and least glamorous of all state public services.
Very few come into the prison services voluntarily and fewer still
would recommend it to others. The feeling in the ranks was that the
government as well as the public at large was totally apathetic towards
them. Prison officers complained that the only attention they received
from the public was negative and their performance was hardly ever
appreciated or encouraged.
The deplorable service conditions are made worse by the near
complete absence of vertical mobility in the department, especially for
the lower or middle order ranks. Jail officials are known to occupy the
same post for twenty five to thirty years which is often the cause for
lack of motivation. In a paper46 circulated in the workshop, Justice
Awasthy, Member, M.P. Human Rights Commission made a strong
46Motivating and Developing Prison Staff; Mr. Justice S Awasthy, Member, MP Human
Rights Commission
62
of
Co-
of Deputy Jailer.
A presentation on the grievances of the lower supervisory order ranks
in the prison department was made by Mr. V.K. Sharma, Assistant
Jailer, Rewa Jail. He pointed out that an Assistant Jailer is promoted
to the post of Deputy Jailer after 20-22 years of service. By that time,
his basic remuneration increases to Rs. 2000, while those in the other
services recruited through the same examination by the State Public
Service Commission have had at least two promotions. Once an
Assistant Jailer is promoted to the post of Deputy Jailer he would be,
63
hierarchy.
The service conditions are worse at the lower rungs. The MP prisons
department has a number of Warders who have not been given any
promotion for the last twenty five years. As a Warder present at the
workshop complained, after five years of good conduct, prisoners get
promoted to the level of convict warders and are given incentives like
remission, while Warders after 25 years of service continue to remain
where they were.
4.2 TRAINING:
4.3 ACCOUNTABILITY
Besides improving the service and working conditions of the prison staff, what
is needed is the introduction of mechanisms that would ensure an element of
transparency and accountability in the prison administration. The need for
accountability was expressed by several delegates at the workshop. Mr.
Kapoor suggested that giving access to media and civil society via the
involvement of non-governmental organisations would be one way of ensuring
higher level of accountability and transparency ion the prison system. Mr.
Aivalli felt that the international and national attention focused on human
rights conditions in Jammu and Kashmir worked as a catalyst to introduce
amongst prisoners.
The system of prison visitors could provide an effective mechanism to monitor
prison conditions provided it worked viably. There was a general consensus in
the workshop that the system was not functioning effectively in most places.
Either the Boards of Visitors have not been constituted and at places where
47Prisoners Rights: Need for Transparency and Accountability A Paper presented in the
workshop by Ms. Marion Macgregor of the CHRI
66
they exist, they seldom visit prisoners. The ex-officio visitors also do not take
their responsibility of visiting prisons, ascertaining prisoners grievances and
providing redress seriously. It was suggested that the visitors should be chosen
from amongst those who have an interest in prisons and knowledge of how
they should be chosen from amongst those who have an interest in prisons and
knowledge of how they should be run. These could be members of the media,
tolerated.
The workshop felt that an effective accountability mechanism would benefit
not only the prisoners but also the prison administration. An open system
would help the public target their anger or disappointment at the root of the
problem. It would bring the problems out in the open and the public may
realise that in many cases the prison staff may not be responsible for what ails
the prison department. Justice Venkatachaliah expressed the view that opening
the prisons to civil society would be of great help in ensuring transparency and
accountability in the prison administration.
67
4.4 IMPLEMENTATION
It was felt in the workshop that though prison problems had been examined by
many expert Committees and that the Supreme Court and High Courts had
on many occasions passed judgements, indicating inadequacies and
deficiencies in different areas of prison work and administration, a
comprehensive programme of reforms was yet to start. The recommendations
The new Prisons Bill drafted by the NHRC called the Prisons
(Administration and Treatment of Prisoners) Bill, 1998 was brought up
for discussion in a paper presented by Ms. Catherine Pierce of CHRI. 48
The Bill was prepared by the NHRC earlier this year in response to calls for
penal reform from various committees and more recently from the Supreme
Court.
The existing legislation, the Prison Act of 1894, was formulated when the
country was under the colonial rule. It has been criticised as being an outdated
piece of legislation, which was not in keeping with the modern view of prisons
as places of rehabilitation rather than retribution. In the recent case
Ramamurthy v. State of Karnataka (1997) 2 SCC 642, the Supreme Court
stated that the century old Indian Prison Act, 1894 needs a thorough look
and is required to be replaced by a new enactment which would take care of
the thinking of Independent India and our constitutional mores and mandate.
The paper focused on certain key issues, like the efficacy of the supervisory
mechanisms, which the Bill proposes to establish as a means of safeguarding
prisoners rights. An important monitoring mechanism is the system of prison
visitors. Various courts as well as the NHRC have severely criticised the
working of this system. The new Bill lacks provisions which would strengthen
the system of visitors. Unlike the 1894 Act, the new Bill does not set out the
duties and mandate of prison visitors. If the system is to be effective, the
48 Discussion Paper on the Prisons (Administration and Treatment of Prisoners) Bill, 1998
by Ms. Catherine Pierce, Researcher, CHRI
69
visitors should be mandated to examine all aspects of prison life and not be
Some delegates, particularly those from the prison department, felt that the
NHRC should invite representatives of prison departments from the states to
discuss their needs and concerns. This would help in widening the debate on
prison reforms, besides making the new law reflect the accumulated practical
wisdom of persons working in the field.
70
4.6 RECOMMENDATIONS
4.7 OVERCROWDING
Some Armed Police should be raised exclusively for the Prison department
and kept at their disposal.
Alternative care homes for non criminal mentally ill persons should be built.
LokAdalats should deal not only with compoundable cases but also with cases
where the accused pleads guilty. The scope of work of LokAdalats in criminal
cases should be increased.
71
The plea bargaining system may be considered for introduction after adopting
necessary safeguards.
Legal aid workers should make greater use of the judgement of the Supreme
Court in Common Cause v. Union of India (1996) 4 SCC 33 and approach the
courts to get more persons released from jails.
Legal literacy drives should be launched with the aim not only of sensitising
the prison administration but also of spreading awareness amongst prisoners
about their rights and obligations.
It is necessary to keep identifying those who need and deserve legal aid. Legal
aid workers must identify such prisoners and educate them about their right to
legal aid.
Legal aid workers must help in getting the undertrials released on bail and on
personal recognizance.
Para legal staff should be utilized to work in prisons and provide the required
legal aid to prisoners.
Legal aid workers must constantly monitor prison conditions and suggest
changes in law to bring about the desired reforms.
The first medical examination of the prisoner, done at the time of his entry into
the prison, must be thorough. Detailed information about various ailments,
including past medical history, must be collected and faithfully recorded.
NGOs help should be enlisted in dealing with drug addicts and in establishing
drug de-addiction centers.
4.12 IMPLEMENTATION
The recommendations made earlier by many expert groups that there should
be an All India Prison and Correctional Service should be considered by the
Central Government.
The State Government may consider establishing parity in the pay scales of
lower ranks in the prison department with those in the police department after
doing an analysis of job responsibilities of the selected ranks in the two
departments.
TRAINING
All State Governments should establish training institutions exclusively for the
basic as well as in-service training of the prison staff.
The NHRC and the State Human Rights Commissions should ensure that the
human rights component is made central to all training modules adopted and
implemented by the prison training institutions.
75
The training of prison staff must be made the responsibility of those who are
professionally competent and who have the required aptitude to bring about
reforms.
ACCOUNTABILITY
76
The new Prisons Bill drafted by the NHRC must incorporate effective
safeguards against violations of prisoners rights and establish mechanisms to
ensure accountability of the prison staff for violations.
The new Bill does not set out the duties and mandate of the prison visitors. The
visitors should be mandated to examine all aspects of prison life and not
restricted to some defined issues, as the new Bill does.
The National and State Human Rights Commissions should be given the
mandate to appoint prison visitors who should then report back to the
Commissions, heads of the prison department and make their report public
through effective use of mass media.
The Bills fails to provide for an impartial body independent of the prison
administration to hear prisoners complaints. This lacuna should be removed
and the new law must institutionalise arrangements for outside oversight of
investigations into prisoners complaints.
The NHRC should invite a wider public debate on the Bill and also call
representatives from the State Prison Departments to give their views so that
the new law reflects the practical wisdom of persons working in the field.
77
CHAPTER-5
PROBLEMS OF WOMEN PRISONERS
The substantial condition of a large number of prisons in India continues to be
bad, dehumanising and violative of the residuary rights of inmates. Over the years,
prisons have become place of low visibility where inhumane and even cruel
conditions have prevailed. The possibility of inflicting injury and injustice on inmates
has always lurked in these closed institutions. Unfortunately the states supervision
over day to day happenings within such institutions has become a mere formality and
surveillance of society is conspicuous by its absence.49
There has been a plethora of recommendations for the improvement of these
conditions both from recommendatory bodies and from the apex judiciary but a large
chunk of these recommendations has not seen the light of the day.50
Women prisons in India are not sufficient in number. According to the Prison
Statistics India 2014 the number of total prisons is 1393, the classification of which is
shown in the below mentioned Table.51
Name of Jail
Women Jail
Central Jail
District Jail
Sub Jail
Number of Jail
18
123
322
866
Name of Jail
Open Jail
Borstals Jail
Special Jail
Others Jail
Number of Jail
44
21
26
3
This table shows that there are only 18 women prisons in the country and jails
exclusively for women prisoners exist only in 12 States/UTs. Women prisoners are
facing a number of problems in the jails. The problems they are facing can be
discussed as under:
i) Shortage of Women Prisons: In India, there is shortage of women prisons.
Women prisoners are facing the problem of overcrowding in the prisons.
Overcrowding itself is a generator of many problems. In such circumstances, it
becomes impossible to perform day to day activities of the life. The data of Tihar Jail
(as on April 2014 ) only demonstrates the problem of overcrowding of prison in Table
II.
Total Capacity of the Women Prison in
Tihar Jail
Prison
400
516
Table shows that in the Tihar jail the capacity of the women jail is of 400 but
the total number of women prisoners who are staying there is 516. It means 116 more
women prisoner are staying without any capacity of their accommodation. Out of 516
women prisoners, 121 are convicted and 395 are undertrials.52
If we look towards India as a whole, as per available statistics the capacity of
18 women jails is only of 3600 female prisoners. But the total female jail inmates as
on 31.12.2010 were 15037 which is 4.1% of the total prisoners. Out of which 4632
female prisoners were convicts, 10252 females were undertrial prisoners, 106 females
were detenues and 47 other women inmates. Out of the total women prisoners i.e.
15037 only 2799 female prisoners are living in the women prisons.53
52
http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile
79
Society through its Director vs UOI and Ors, 56 the supreme court in regard to the
release of undertrial prisoners held that it is a matter of common experience that in
many cases where the persons are accused of minor offences punishable not more
than three years or even less, with or without fine, the proceedings are kept pending
for years together. If they are poor and helpless, they languish in jails for long periods
either because there is no one to bail them out or because there is no one to think of
them. The very pendency of criminal proceedings for long periods by itself operates
as an engine of oppression. Even in case of offences punishable for seven years or less
with or without fine, the prosecutions are kept pending for years and years together in
criminal courts.
It appears essential to issue appropriate directions to protect and effectuate the
right to life and liberty of the citizens guaranteed by Article 21 of the Constitution.
Court also clarified that in such cases, the criminal proceedings have remained
pending despite full cooperation by the concerned accused to get these proceedings
disposed of and the delay in the disposal of these cases is not at all attributable to the
concerned accused, nor such delay is caused on account of such accused getting stay
of criminal proceedings from higher courts.
Traumatising prison conditions and practices often have damaging and long
term impact on the mental health of inmates, especially women. Institutions of
correction and custody are as fraught with gender and other biases as the world
outside.
55
http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile
56 1996 AIR 1619.
81
The World Health Organisation suggests that one in nine of the total prison
population of 9 million in the world suffers from some form of mental disorder or
illness.
Our work in prisons leads us to believe that at least 50 per cent of the women
locked inside for more than six months show signs of some of the most common
mental disorders of the accepted international list of disorders, states Rani
DhavanShankardass, Secretary General of PRAJA (Penal Reform and Justice
Association), India and Honorary President of Penal Reform International, London,
UK.
In her book, In Conflict and Custody (Sage Publications), Rani stresses for the
need for counselling and writes, For women (and other vulnerable groups) it is a
severe punishment that needs a hard second look. The wounds are more often than not
invisible and therefore insignificant. The NGOs that have worked in womens prisons
in South Asia are struck by the general indifference of the official machinery to the
mental state of those who stay and come out worse than when they went in.
Of all the women that require counselling, women in prisons require it even
more so. This makes the case for counselling centres inside prisons very strong. But
women in prisons are not a top priority for those who do have women on their agenda.
if imprisoned women are seen as in need of attention, it is their most basic needs
that are considered worthy of focus and not counselling and/or emotional/ mental help
or repair which would constitute an indulgence. When women enter prison, they are
doubly deviant, doubly damned. There is scarcely any other group of persons in any
society that is measured by a yardstick that has changed so little over time or place,
says Rani.
82
recognised as a necessary evil and is tolerated in a free society in the larger interest of
security of the State and maintenance of public order. It is a drastic power to detain a
person without trial and in many countries it is not allowed to be exercised except in
times of war or aggression. The Indian Constitution does recognise the existence of
this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. The
prisoner or detenu has all the fundamental rights and other legal rights available to a
free person, save those which are incapable of enjoyment by reason of incarceration.
As a necessary component of the right to life, he would be entitled to have interviews
with the members of his family and friends and no prison regulation or procedure laid
down by prison regulation regulating the right to have interviews with the members of
the family and friends can be upheld as constitutionally valid under Articles 14 and
21, unless it is reasonable, fair and just. Moreover, medical facility in the prison is not
satisfactory. It is poor. The inadequacy of medical services in prisons, often resulting
in the death of prisoners has been much in evidence. Statistics in the Annual Reports
of the NHRC reveal that there are a much larger number of deaths in judicial custody
than there is in police custody. Given the frequency and seriousness of the complaints
about medical services in prisons, it would bear investigation to find out how many of
the deaths in judicial custody are, in fact, occasioned by medical negligence.61
5.2 TORTURE IN CUSTODY
Sexual assault to the women prisoners is also a major problem which they are
facing. There are horror stories about the torture in custody to the women prisoners.
Asian Centre for Human Rights (ACHR) stated that custodial rape remains one of
the worst forms of torture perpetrated on women by law enforcement personnel and a
number of custodial rapes of women take place at regular intervals. The NHRC
61 http://ihranewdelhi.com/hr_prisons.html
85
recorded 39 cases of rape from judicial and police custody from 2007 to 28 February
2014.Citing the case of Maloti Kalandi, wife of BadalKalandi who along with
children was rescued from being trafficked, was handed over to the Tamulpur police
station, Baksa district of Assam for safe custody. Instead of providing safety, SubInspector Sahidur Rahman summoned the victim to his official quarter and raped
her.62
A few women who served prison terms have alleged torture and inhuman
treatment within the prisons across Tamil Nadu. They say that they were stripped
naked and abused verbally and physically and not provided even basic facilities.
Parameswari of Annaiyur in Madurai said I was stripped naked by convict wardens in
the presence of the jail wardens and other prisoners and abused both verbally and
physically. Similarly two more prisoners, Munniammal who had been lodged in the
Nilakottai sub-jail for robbery and M Muthulakshmi who had been arrested by the
police for illicit brewing of liquor, said they were never given anything but gruel in
the prison. They also said that four to eight prisoners were crammed into a cell and
they were forced to use a small corner as their toilet, without even a curtain to provide
them privacy.63
A Tihar Jails woman prisoner, facing trial in cases of cheating and forgery,
has accused the jail warden of torturing her with the help of HIV positive woman
inmate for extorting money from her. She alleged that she was beaten up for an hour
in front of the deputy superintendent and the jail staff who remained mute spectators.64
Women prisoners are not safe in lock ups. Ms. Saradha was brought to Special Prison
62 http://www.panthic.org/articles/5394
63 http://articles.timesofindia.indiatimes.com/2011-03-08/chennai/28667863_1_womenprisoners-tiruchi-jail-wardens
86
for Women, Vellore, Tamil Nadu, as a remand prisoner having been remanded by the
Judicial Magistrate. She was undressed totally and dragged nude for quite some time
till they reached the entrance of her cell and was put in solitary confinement and she
was never given back her clothes and no official in the prison bothered about her. She
was awarded 50000/- as compensation by the court. Supreme Court 65 judge Ranjana P.
Desai at the conference of All India Federation of Women Lawyers in Chennai said
that the criminal justice system has failed to protect the rights of women, who are
often victims of violence and discrimination.66
SoniSori a 35 year old adivasi schoolteacher, warden and mother, subjected to
sexual violence while in custody in the Dantewada police station in Chhattisgarh
under directions of the Superintendent of Police (SP) says in her letter to the Supreme
Court advocate that After repeatedly giving me electric shocks, my clothes were
taken off. I was made to stand naked. SP was watching me, sitting on his chair. While
looking at my body, he abused me in filthy language and humiliated me.67
64 http://articles.timesofindia.indiatimes.com/2012-04-22/delhi/31381841_1_jail-wardentihar-jail-jail-staff
65 P. Pugalenthivs The State of Tamil Nadu on 17 July, 2009
66 http://Woman & Child Prisoners\The Hindu States Tamil Nadu Judge discrimination
against women a global phenomenon.htm
67 G:\Woman & Child Prisoners\Delhi - All India Meet on Women Prisoners and Custodial
Violence, Mar 31 at Sanhati.htm
87
imprisonment which they feel that they suffer as they have not obeyed the advice
ofelders. They blame their husbands or male companions who have forced them to
criminal life. They are concerned about their childrens future and are on guilt trip that
they are not able to take care of their children. They fear that their children may
succumb to way ward habits leading to inter generational crime. However in thecase
of male inmates they blame their parents for the plight. Incarceration of women leads
to the problem of intergenerational crime due to lack of parental control. Most of the
inmates are from the poor strata of society and are subject to personality and physical
abuse right from their childhood. Once they give birth to children their husbands
begin to neglect them and look elsewhere for their sexual needs. This adds to neglect,
feeling of loneliness, insecurity and emotional trauma. When theyare incarcerated the
trauma only gets aggravated. The social stigma attached to a woman prisoner is much
worse compared to male. Visit by families is also few and far between. They are
rarely consulted on important family decisions.
Children are mostly neglected or in some instances taken care of by blood
relatives who are reluctant to meet them due to societalstigma .Analysis of crime
profile of women prisoners in Tamil Nadu Prisons reveals that of the 172 convicted
inmates 127 are involved in murder cases which is mostly crime of passion and not
premeditated. Of the 800 inmates who are under trials, nearly 50% are involved in
illicit liquor and drug offences. In the dowry cases women in the age group of 50 and
above are concerned. In dowry related cases it is always their son who through his
mother instigates demand of dowry and the parents willy nilly get into the vortex of
this social malaise.
Rehabilitation and social integration are two other crucialimperatives which
should receive focused attention of correctionaladministration and also the civil
90
5.5
OTHER
PROBLEMS
OF WOMEN:
NATIONAL AND
INTERNATIONAL PROSPECTIVE
The fact that prisoners have higher rates of psychological distress and mental
health problems when compared to the general population are well established (Fazel
& Danesh, 2002). Needless to say, the rates are much higher in the case of women in
custody. Although women still constitute a small minority of the prison population
across the world, the number of incarcerated women is increasing. In addition to the
common kinds of distress both men and women experience in prison, women are
more vulnerable for gender discrimination, neglect, violence, physical and sexual
abuse. Studies have documented that relative to their male counterparts, women
incarcerated in state prisons are more likely to have mental disorders and a history of
physical and sexual abuse .Despite the magnitude of problems, little attention has
been given to the unique health concerns of women prisoners. Mental health care and
attention to the psychological distress that occurs because of imprisonment of women,
is almost non-existent.
Women usually lead protected lives and are good home makers. They are not
exposed to the travails of the outside world. When they come in conflict with
91
law and are imprisoned, they find it very difficult to cope with the prison
environment. Prison isolates the women from their family and friends. They
cannot perform their usual duties. This causes sadness, guilt and puts
tremendous stress on them. The physical and mental health needs of women
are different compared to men. Traditionally, most of the prison inmates are
males, and the prison environment is therefore shaped by the needs of males
by female officers.
Male staff continue to have unchecked visual and physical access to
women in what constitutes their rehabilitation rooms, bedrooms,
restrooms and living rooms in many Indian prisons. At times, male staff
does not hesitate to do frisk search on female prisoners. There are instances
when prison staff have endorsed and supported bullying and verbal abuse of
women prisoners, if they do not listen to them (Human Rights Watch 1996).
International Review
Women prisoners are found to suffer from a variety of health problems in the
custodial environment. A recent study on women prisoners in the UK reported
that imprisonment impacted their health negatively. The initial shock of
imprisonment, separation from families and enforced living with other women
92
suffering drug withdrawal and serious mental health problems affects their
own mental health. Over the longer term, women complained of detention in
unhygienic facilities by regimes that operated to disempower them, even in
terms of management of their own health. Women described responses to
imprisonment that were also health negating such as increased smoking, eating
poorly and seeking psychotropic medication. The study avers that there is little
evidence that the UK policy initiatives have been effective in addressing the
health needs of women prisoners. According to the fact sheet of Amnesty
International on women in prison, women are denied essential medical
a) Special attention should be given to the needs of women in prison. Staff dealing
with detained women should be trained to deal with the psychosocial and medical
problems associated with HIV infection in women.
b) Women prisoners, including those who are HIV-infected, should receive
information and services specifically designed for their needs, including information
on the likelihood of HIV transmission, in particular from mother to infant, or through
sexual intercourse. Since women prisoners, either upon release or during parole may
be sexually active, they should be enabled to protect themselves from HIV infection,
e.g., through imparting skills in negotiating for safe sex. Counselling on family
93
diseases;
Family planning and counselling services oriented to womens needs;
Care during pregnancy in appropriate accommodation;
Care for children, including those born to HIV-infected mothers; and
Condoms and other contraceptives during detention and prior to parole
periods or release.
There is also a need to focus on the preventive health care aspects for the
women prisoners, especially with respect to cervical cancer screening, breast
cancer, HIV testing and hepatitis. Opportunities need to be provided for sex
education, smoking cessation and drug de-addiction programmes. US based
studies have reported that access to substance abuse treatment for women is
necessary because at least half the women in state prisons were under the
influence of illicit drugs/alcohol at the time of their offence and most women
Mental health problems among women in prisons all over the world are very
high. These include both mental disorders and a high level of drug or alcohol
dependence. Women in prisons frequently come from deprived backgrounds,
and many have experienced physical and sexual abuse, alcohol and drug
dependence and inadequate health care before imprisonment. Further, women
entering prisons are more likely than men to have poor mental health, often
associated with experiencing domestic violence and physical and sexual abuse.
Research indicates that women in prisons have mental health problems to a
much higher degree than both the general population and male prisoners
(Bastick and Townhead, 2008). A systematic review of the literature on
prevalence of post-traumatic stress disorder (PTSD) in prisoners reported
that PTSD rates ranged from 4% of the sample to 21%. Women were
disproportionately affected. A study conducted by the Bureau of Justice
Statistics of the United States, showed that 73% of the women in state prisons
and 75% in local prisons in the United States have symptoms of mental
95
97
resort to crimes.
In another study by Kumari (2009), women prisoners perceived that they
would face problems in all spheres of life in future because of their
imprisonment. They were also worried about economic and family problems.
There is hope about the redemption of the prisoners through counseling and
rehabilitation. A study supported by the National Commission for women
evaluated mental health problems among women in the Central Prison,
Bangalore (Murthy et al 1998). Among both women undertrials and convicts,
common emotional responses were unhappiness, feelings of worthlessness,
worry, and somatic symptoms. All these were aggravated during crises points
in prison (entry into prison, court hearing, around the time of pronouncement
of judgment, victimization, release of a fellow prisoner, death of a fellow
requires
98
and post-natal care and child care (Upadhyay Vs State of A.P., 2006). The Apex
court has clearly stated the following:
Regarding Pregnancy
a. Before sending a woman who is pregnant to a jail, the concerned
authorities must ensure that the jail in question has the basic minimum facilities for
child delivery as well as for providing prenatal and post-natal care for both the mother
and the child.
b. When a woman prisoner is found or suspected to be pregnant at the time of
her admission or at any time thereafter, the lady Medical Officer shall report the fact
to the superintendent. As soon as possible, arrangement shall be made to get such
prisoner medically examined at the female wing of the District Government Hospital
for ascertaining the state of her health, pregnancy, duration of pregnancy, probable
date of delivery and so on. After ascertaining the necessary particulars, a report shall
be sent to the Inspector General of Prisons, stating the date of admission, term of
sentence, date of release, duration of pregnancy, possible date of delivery and so on.
99
should be made to enable an expectant prisoner to have her delivery outside the
prison. Only exceptional cases constituting high security risk or cases of equivalent
grave descriptions can be denied this facility.
b. Births in prison, when they occur, shall be registered in the local birth
registration office. But the fact that the child has been born in the prison shall not be
recorded in the certificate of birth that is issued. Only the address of the locality shall
be mentioned.
c. As far as circumstances permit, all facilities for the naming rites of children
born in prison shall be extended.
100
101
Recommendations
The main goal of imprisonment must be rehabilitation and reformation instead
of punishment. There is a need to enable prisoners to lead useful and law-abiding lives
on their return to the community. Keeping such a focus, the negative effects of
imprisonment should be minimised; mental health should be maintained and
promoted. Women prisoners must feel safe, be treated with respect and dignity and
need to be assisted towards developing insight into their offending behavior. The
Supreme Court directions need to be implemented regarding women prisoners
requiring assistance in pregnancy, ante-natal, natal and post-natal care. Children of the
women prisoners must be provided care as per the guidelines.
Any intervention must start with the prisoner, the moment she enters the prison:
Privacy and dignity: Women prisoners privacy and dignity must receive the
topmost priority.
Female staff: There must be a female doctor inside the prison as well as
102
103
CHAPTER-6
PROTECTION OF HUMAN RIGHTS OF WOMEN PRISONERS
BY THE INDIAN JUDICIARY
The Constitution of India guarantees equality to women and various laws
have been enacted to protect and empower women. But the pathetic situation of
women prisoners languishing in jails is a serious social problem. The problems faced
by them are outcome of the general societal indifference towards them. The concept
of human rights is totally alien to such women. The press has frequently exposed the
violence and sexual exploitation of women and youth in the jails. Though there are
elaborate rules in the jail manuals to protect women, very few women know about
them. As "women have a special claim to compassion, defence of dignity, human
rights, protection of her sensitive needs and personal integrity" society needs to
be extra sensitive to female prisoners. The research paper is a humble attempt to
104
highlight the violation of human rights of women prisoners and their protection by the
Indian apex Court. Problem of prisoners languishing in jails without trial is a very
serious one confronting judiciary. Non-availability of separate prisons for women and
their sexual exploitation are the common problems of Indian prison system. The
imprisonment of mother with dependent young children is a problematic issue.
Female wards in prisons are mostly over crowded. Adequate clothing and toilet
facilities are not made available. The general health care of women prisoners in
prisons is not up to the mark. The facilities for education, vocational training and
recreational facilities are also very limited. Majority of the women prisoners are from
rural background, illiterate, shy and do not have courage to communicate their needs
and grievances to the prison staff in the jails. They cannot also ventilate their
sufferings and transmit the same to higher authorities. In Sheela Barse v. State of
Maharashtra the Court ruled that legal assistance to a poor or indigent accused
arrested and put in jeopardy of his life or personal liberty is a constitutional
imperative under Articles 39A, 14 and 21. Where it is not provided, injustice is likely
to result. The court directed the State of Maharashtra to provide separate lock ups for
female suspects guarded by female constables, ensure interrogation of females by
female police officers. Further, the magistrate before whom a women prisoner is
produced should inquire whether she had any complaint of maltreat- ment in police
custody. Legal assistance be provided to prisoners and a lady judge make periodical
visits to police lock ups in the city of Bombay to hear grievances of women prisoners.
The province of prison justice, the conceptualization of freedom behind bars and the
role of judicial power as constitutional sentinel in a prison setting, are of the gravest
moment in a world of escalating torture by the minions of State. Where the prison
process is dehumanized, forensic help, un-deflected by the negative crudities of the
105
adversary system, makes us dare where we might have daunted. The finest hour of
justice comes when court and counsel constructively collaborate to fashion a relief in
the individual case and fathom deeper to cure the institutional pathology which breeds
wrongs and defies rights. Judicial activism of the Supreme Court gave a new
dimension to the word 'personal liberty' where prisoners' rights were debated,
observed Justice Krishna Iyer, in Sunil Batra V. Delhi Administration (II).Justice
Krishna Iyer said that "Prison Manuals are mostly callous colonial compilations
and even their copies are mostly beyond the prisoner's ken. Punishments in
civilized societies must not degrade human dignity. The cardinal sentencing goal
is occupa- tional, changing the consciousness of the criminal to ensure social
defence. Where prison treatment abandons the reformatory purpose and
practices dehumanizing techniques it is wasteful, counter- productive and
irrational hovering on the hostile brink of unreasonableness (Article 19)". Justice
Iyer acknowledged the prisoner's right to privacy also. Infraction of privacy may be
inevitable, but guards must concede minimum human privacy in practice. If the
prisoner desires loneliness for reflection and remorse, for prayers and making peace
with his maker, or opportunities for meeting family or friends, such facilities shall be
liberally granted, having regard to the stressful spell of terrestrial farewell his soul
may be passing through, the compassion society owes to him whose life it takes.
Hussainara Kahtoon v. State of Bihar was a landmark case in which the Court
directed release of a large number of men and women awaiting trial in the courts. The
Court held that delay in trial constitutes denial of justice and therefore the State
should ensure speedy justice and provide legal aid to the prisoners. Justice V.R.
Krishna observed that "Part III of the Constitution does not part company with the
prisoner at the gates, and judicial oversight protects the prisoner's shrunken
106
fundamental rights". Judiciary's role in issuing several direction to Central and State
governments to prevent violations of human rights of the women prisoners is
laudable. But to bring needed improvement, active cooperation of government is
must. Judiciary needs adequate staffing to arrest the problem of pending cases of
under-trials. It is high time the government, police, jail staff and judiciary become
considerate to the special sensibilities of the women prisoners.
107
109
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