CHAPTER-1

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 country’s 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, Women’s 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

In a male-dominated Indian society, women often face discrimination. A

number of crimes are also being committed against the women in the society. Women 1 http://www.publishyourarticles.org/knowledge-hub/essay/an-powerful-essay-on-the-status-of-women-

in-india.html2 http://www.lawisgreek.com/category/constitution-india/landmark-court-rulings

1

are exploited in the society at different levels because of their unawareness about their

legal rights. Condition of the women prisoners is also not good. They are being

oppressed and tortured in the prisons. Custodial horror is a daily occurrence for

women prisoners in India. What can a woman do when her ‘custodians’ become her

violators? The question is very intimidating and frightening but this is actually

happening to women in India. There have been innumerable cases where ‘men-in-

khaki,’ as we usually refer to the police as, have been caught outraging the women

prisoners’ modesty, inside and outside the jail. Worse, women prisoners in India are

not just raped but even murdered by policemen.3

Most of the women in Indian jails are of poor background. A woman of sound

background whatever may be the ground, generally avails all the privileges in the jail

as RajyaSabha member K. Kanimozhi was sent to Tihar jail on the basis of

involvement in high profile 2G spectrum case. She pleaded in the court that she

should get bail on the grounds that she is a woman and a mother and was granted bail

on November28, 2011. In judicial custody for over six months, she was given a

separate cell in the women’s section, equipped with a bed, a television and a toilet.4

Moreover the Prison Act, 1894 is too old. It contains no provisions regarding

welfare of the women prisoners. Deputy Director, Institute of Correctional

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

3 http://www.lawisgreek.com/tag/women-rights

4 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

5

2

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 visits-

procedure, 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.

The female prisoners from Kasaragod were shifted to Kannur following a

jailbreak at the Hosdurg sub jail in November 2012.

According to the report given to me by the Supritendent of jail, kannur to

whom I have contacted trhough mail, there were 36 prisoners in Kannur women's jail,

including 24 on remand. However, there are only two rooms to accommodate all of

6 http://nhrc.nic.in/Documents/Minutes%20&%20Reco%20Prison%20Reform.pdf

3

them. When the number of prisoners on remand is high, they are accommodated in the

room earmarked for those who are serving punishment.

Though the women's cell in Hosdurg was closed because the number of

prisoners was quite low, 11 of the prisoners currently here on remand are from

Kasaragod. This number is bound to go up during festive seasons as cases of illicit

liquor brewing go up during festivals and more women are involved in such cases

than men.

Apart from the struggle for space, water scarcity in summer is also a cause for

concern. Though a new well was dug here last year, there is a chance that the water

could dry up and if it does, the situation could go from bad to worse.

According to top officials there is no cause for concern as most rooms in the

jail have the facility to accommodate more inmates. "The female blocks of many jails

in the state were shut down as part of a decision to shift all female prisoners in each

district to one jail," said SivadasKThaiparambil DIG prisons (north zone).

"Most prisons have more inmates than their original capacity, but rarely do

problems crop up as there are sufficient spaces," he claimed, adding that there is no

immediate plan to shift the prisoners back to Hosdurg, because the authorities have

not decided whether there should be a female prison in Kasaragod.

"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

4

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 rationed-

India's jails are less correctional centres and more crime dens where 'bladebaazi' (the

5

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

undertrialfor a petty theft gets as hardened as a convicted criminal,'' says an official in

Tihar's Jail No. 7. The poorer you are, the more you suffer.

Jails in Bihar are amongst the worst in the country. Underworld dons continue

to operate from behind bars, thanks to mobile phones and lax security arrangements.

In March 2010, Patna trader RandhirJaiswal was murdered when he refused to

6

pay heed to the extortion demands of a jailed criminal. In Patna, almost every major

crime is linked to the ganglords lodged in Beur jail. In February 2011,

undertrialBablu Mishra, accused of selling spurious liquor, was beaten to death in

Bihar's Nawada jail at the behest of the powerful liquor mafia, which feared that

Mishra would spill the beans. In another brazen act, an imprisoned criminal in

Nawada jail called up the Bihar Director-General of Police (DGP) Neelmani in March

last year and threatened to blow up the town if his demands were not met.

Delhi's Tihar jail may boast of foolproof security but 2G scam accused

Kusegaon Fruits and Vegetables director Rajiv Agarwal, managed to smuggle in a

BlackBerry phone. It is not known how long he had the phone before it was recovered

from his cell during a surprise check. A Page 3 prisoner, accused of a white-collar

crime, disclosed how he managed to use his satellite phone undetected in the prison

two years ago. According to him, life in prison can be comfortable if one has money

and is not in the media glare. "From pizzas to chicken from Maurya's Bukhara, to the

best quality booze, everything can be arranged for the right price. It's just that the

chicken has to be boneless and the liquor clear like gin, vodka or white rum. One can

get most things in jail but for a huge price. I calculated that one needs about Rs.2

crore a year to live comfortably in jail,'' the former Tihar inmate said.

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

7

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

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.

8

"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,

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.

9

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.

Law Minister M. VeerappaMoily says that the government is planning to

introduce a Right to Justice Bill, whose highlight will be a time-bound justice delivery

system. It remains to be seen if the ills plaguing Indian prisons get addressed.

1.1 LIFE IS HELL FOR WOMEN INMATES OF TWO MUMBAI

JAILS:

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.

It’s 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

have shut away.

Every month, each of the more than 1,000 women at the Aadharwadi prison in

Kalyan is given a bar of soap. They have to use this to wash all their clothes,

their utensils, and themselves. Skin ailments are routine. Through the day,

there are two toilets for all of them to share. Several woman have had a series

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

jails, this one in Kalyan, and another in Byculla.

There is stigma attached to women in prison, says a jail official. They are not

supposed to be ‘criminals’, so their families want nothing to do with them.

“While family members come to the aid of many male prisoners, with women

they are reluctant,” the official adds, asking not to be named.

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

their cases stand, what their legal options are.

11

A jail official explained that many of these women are facing trial for

murdering their husbands or domestic disputes. Families find it difficult to

reconcile with this, and snap all ties with them. Sometimes NGOs step in and

counsel the relatives. Some of them come around.

And sometimes, as it happened with a mentally ill woman at the Kalyan

prison in 2010, families don’t even know they are in jail, and give them up for

dead. It was only after extensive counselling that she was able to tell them her

family’s address. Then, officials got in touch with them and they were

reunited, says a source.

The absence of family is felt most when health problems strike. “Those

suffering from high blood pressure or diabetes require a regular supply of

pills. This is possible if their family members buy it and give it to them. Those

with no relatives are taken to the nearby JJ hospital only after their condition

worsens from lack of medicine,” said a former inmate at the Byculla jail,

which houses about 350 women.

A psychiatrist and a gynaecologist visit the prison once a week, and there is a

full-time doctor. “There used to be a full-time woman doctor, whom inmates

felt more comfortable speaking with,” says a jail official. “She left a while

ago, and the post has since been vacant.”

In some ways, life in prison mirrors life outside. For instance, class and power

equations persist. Women form groups based on educational backgrounds and

the ability to speak English. The richer ones, or those with links to the

underworld, “rule the roost”.

“A woman convicted in a high profile case for plotting her husband’s murder

had tremendous influence at the Byculla women’s prison. She even wielded

12

clout among some junior staffers. The superintendent then got her transferred

to Yerawada prison,” says a source.

In such an atmosphere, fights are common, and prison guards often have to

intervene. “Staff and teachers who sometimes visit also need to have

tremendous patience. Sometimes, teachers go on leave and never return,” an

official says.

The job of looking into the problems of prisoners is the probation officer’s

(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

inmates are hardly a priority.

Authorities say they do what they can, “As far as overcrowding is concerned,

we are starting a facility for women at Thane jail as well, which can house 150

inmates by next month. This should help reduce the load at Aadharwadi

prison. Apart from that, we follow the procedures laid down by the prison

manual, and take care of the inmates,” says Bipin Kumar Singh, inspector

general of prisons (southern region).

1.2 CONDITIONS OF WOMEN PRISONERS IN THE JAILS OF

JHARKHAND

Women in our society are in a vulnerable and disadvantaged position because

of their social status & economic condition. Once they are in prison they are

completely abandoned. Between the 18th – 20th January 2013 the team

visited Chaibasa Jail, the Ranchi Central Jail and the Hazaribagh jail. Despite

13

prior notification to the higher authorities about the visit, we were not allowed

to enter the jail in Chaibasa and could only visit the inmates in the office of the

Superintendent, in her presence. That directly hindered the prisoners to have

an open talk with us about their problems and difficulties. Obtaining

permission for the entry in Ranchi and Hazaribagh jail were also not very

smooth. We however observed certain disturbing details in the conditions of

the prisons in which the inmates, especially the women prisoners are

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

social stigma that is associated with prisoners.

Children are allowed to stay with their mothers till the age of six. After that

they are removed from the jail and the children above six years are not

allowed to stay with the mothers. Both the mother and child in most cases are

separated completely without meeting each other ever. Almost all the women

we met, who had children over the age of six, are completely clueless about

the whereabouts of their children. In some cases we met mothers who had

14

children below six years yet they had no idea about the provisions to keep

along with them in the jail.

There is complete failure of legal aid from the government. Most cases where

the accused can not afford to have a lawyer of her own (and most people can

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

produced in the court.

We are told that the production of inmates before the magistrate has been

dispensed with due to the provision of video conference. This takes away the

rights granted to the prisoners to complain to the magistrate if there is any

violence committed against them when in confinement. Also they loose an

opportunity to meet their family/children or advocate. Rather she is forced to

do it in the intimidating supervision of the jailors and the police in the jail

itself in a secluded manner. Our team would like to appeal to the local

advocates to consider this subject with utter seriousness and if possible file a

PIL against video conference.

The Ranchi jail was comparatively cleaner and better kept. Although we were

not allowed to go inside the Chaibasa Jail, we have serious doubts about the

hygienic conditions within it. We however did not witness ourselves any trace

15

of the ‘vocational training’ that superintendents of both the Ranchi and

Chaibasa jails claimed to provide to the inmates. In Hazaribag jail however,

there is no provision at all for the women to work and earn during their period

of confinement. The door of the toilets in Ranchi jail was shockingly half

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.

1.3 POLITICAL PRISONERS:

The jail authorities in Jharkhand have extremely problematic notions about

political prisoners. This concept officially does not exist in the Jharkhand jail

parlance. The Maoists/Naxalite activists for example are all booked under ’17

Criminal Law Act’ and are not seen as ‘political activists’. We apprehend that this

soon might be used against any other activists seen with other political affiliations too,

who seek to rebel against or critic the existing exploitations executed by the state, the

16

society or the powers that be. This exposes the blindfolded functioning of the

repressive state machinery and its complete indignation towards rightful political

activities. As per the Superintendent of the Chaibasa Jail, the Maoists are no political

party as they function on their own ideology! This shows her ignorance towards the

concepts of both politics and ideology! However, we felt in that case the Maoists

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.htm8 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

againstWomen (CEDAW) in 1993.10Article 12 (2) of this Convention provides that

9 http://www.rwi.lu.se/pdf/seminar/manoj05.pdf10 http://wcd.nic.in/

19

States Parties shall ensure to women appropriate services in connection with

pregnancy, confinement and the post-natal period, granting free services where

necessary, as well as adequate nutrition during pregnancy and lactation.11

Article 3 of the Universal Declaration of Human Rights states that everyone

has the right to life, liberty and security of person and Article 5 states that no one

shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment.12

Article 10 (1) of the United Nations Covenant on Civil and Political Rights

states that “All persons deprived of their liberty shall be treated with humanity and

with respect for the inherent dignity of the human person” and Article 6(1) states that

every human being has the inherent right to life. This right shall be protected by law.

No one shall be arbitrarily deprived of his life.13

Therefore, both under National as well as International Human Rights Laws,

inhuman and degrading treatment to women prisoners is prohibited and the State is

under obligation to uphold and ensure observances of basic human rights and

constitutional rights of women prisoners in the prisons. Inspite of the various

constitutional provisions providing status of equality to the women in India, the

condition of the poor women prisoners is not good. They are being ignored and

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

11 http://www.unhcr.org/refworld/pdfid/3ae6b3970.pdf12 http://www.un.org/en/documents/udhr/index.shtml#a13 http://www2.ohchr.org/english/law/ccpr.htm

20

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

2.1 PROVISIONS ENSURING RIGHTS OF INDIAN WOMEN

After Independence lots of provisions have been introduced to improve the

social condition of women and to give them a platform where they can utilize their

potential for their betterment and contribute positively towards the growth of their

country. It is fact that the in the present era position and development of any country

is dependent on the socio-economic position of its women. The provisions which

enhanced the value of present women can be divided into two parts:

1. Constitutional provisions 

2. Parliamentary provisions

It’s a fact that awareness about constitutional and Parliamentary provisions to

improve the condition of women is lacking. To ensure and spread the awareness of

these provisions we will discuss them in detail.

2.2 CONSTITUTIONAL PROVISIONS TO ENSURE DIGNITY OF

WOMEN

Lots of provisions have been introduced through constitution to ensure dignity

and self respect to the women at large. As mentioned earlier Dr. B. R. Ambedkar,

author of Indian constitution, make sure that constitution of India safeguard the social

14 Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 151415 http://Woman & Child Prisoners\Proposition laid down by the Supreme Court of India in the context

of Torture in prisons and Human Dignity.htm

21

and legal rights of women. Please find below some of the provisions made in favour

of Indian women, in constitution of India:

1. Article 14:-   Article 14 of constitution of India ensures equality before the law

or the equal protection of the laws within the territory of India. This is a very

important provision which provides equal legal protection to women against

any women based crime. This provision also paves way for the introduction of

various laws and acts to ensure protection and enforcement of legal rights of

women in India.

2. Article 15:-   Article 15 of constitution of India ensures that no one should

create any sort of discrimination only on the grounds of religion, race, caste,

sex or place of birth or any of them within the territory of India. At the time of

Independence there was lots of discrimination in India against women which

gradually abolished after introduction of article 15. As per article 15(3) of the

constitution state has the authority to make any special provision for women

and children.

3. Article 16:-   Article 16 of constitution of India ensures equal employment

opportunity to every citizen of India. As per article 16 there should not be any

discrimination in respect of employment opportunity under the State only on

grounds of religion, race, caste, sex, descent, and place of birth, residence or

any of them. Now we can see women are doing really good work in politics

and in corporate sector. Presently they are holding responsible positions in

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.

22

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

constitutional rights there are numerous legal steps that have been taken by the state

Governments which we will discuss in detail through this article.

23

2.3 PARLIAMENTARY PROVISIONS TO ENSURE DIGNITY OF

WOMEN:

After Independence there was need to introduce some statutory laws to ensure

safety and protection of women. Keeping in view this requirement, just like

constitutional provisions, various parliamentary steps have also been taken by the law

of India in order to ensure dignified life to the Indian Women. Parliamentary steps

means and includes the enactment of various laws and statutory acts to protect the

interest of women and to stop the crime against women. These acts have proved really

useful towards progress and safety of women in society. 

Personally I feel that equal rights should be awarded to women which have

already been enjoyed by men in our society as women forms a major part of Indian

population and for social and economic welfare on global platform women welfare is

very much needed. In order to ensure adherence to constitutional provisions for

women welfare, there was a need to enact specific laws by the state and central

Government. Although a women can be victim of any crime in society and in fact all

crimes cannot be classified as a crime against women except few crimes which affects

a women largely. However major steps have been taken by the legislation which has

proved as weapons for women and helped them to stand in male dominating country.

Now we will discuss major crimes against women along with the legal provision

which penalize the criminal.

Few crimes which are recognized as crime under Indian Laws, against women

are:

1. Adultery :-  Adultery is a very serious crime against women in India and

affects married women by and large. In simple words adultery means having

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

is really shameful to note that even today, when we considers ourselves

25

educated and civilized, this custom is practiced in a big manner. Government

has taken so many steps to spread awareness among people about the

consequences of this crime. Many awareness programs are conducted by the

Government to spread the awareness about the physical, mental and social

effect of this practice. Punishment of 3 years imprisonment and Rs. 10,000

fine has been prescribed by Pre conception and Pre Natal Diagnostic

Techniques (Prohibition of Sex selection) Act, 1994, for the offence of Female

feticides. 

In a recently development Maharashtra government has recommend to the

centre that the crime of female feticide should be treated as murder. To ensure

this amendment in Pre conception and Pre Natal Diagnostic

Techniques(Prohibition of Sex selection) Act, 1994, (PCPNDT Act, 1994)

would become necessary. This provision will bring this crime within the

category of murder under section 302 of the Indian Penal Code (IPC).

4. Trafficking and Prostitution :- Trafficking means import and export of

humans for sex business. It is indeed very sad to learn that in India, where

women are recognized as Devi and prayed by all Indian’s as Devi Shakti, they

are also treated as a source of earning by unethical means. Prostitution is one

of the biggest problems in this world which is damaging the women in many

ways. In general, the term prostitution means offer of sexual services for

earning money. Prostitution is a problem which exists across the world. There

are quite a few laws in India in order to prevent the crime of prostitution like

Suppression of Immoral Traffic in Women and Girl Act 1956 and Immoral

Traffic (Prevention) Act 1956. There are few commissions are made by state

26

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 nation’s 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 don’t take it seriously. But from

a women’s point of view eve teasing is also a very big crime as this activity

does make her feel uncomfortable most of the times. Eve teasing usually

27

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 can’t 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 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.

28

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 don’t

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 NRI’s 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 NRI’s 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 today’s

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

and how. What she had paid go get this position and power? How much pain

she has felt to become this person.

29

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

and seek restoration of her rights from serious harassment by the husband's

family. 

30

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.

2.4 LEGISLATIONSFOR WOMEN AT A GLANCE

Let me also share the name of some of the legislative acts which are available

in India to protect women’s rights against harassment. These acts are like a boon to

women at large to protect their dignity in society. Please have a look: 

1) Dowry Prohibition Act, 1961

2) The Protection Of Women From Domestic Violence Act, 2005

3) The Commission Of Sati (Prevention) Act, 1987

4) The Immoral Traffic Prevention Act, 1956

5) Civil Procedure Code, 1973 

6) Indian Penal Code, 1960

7) Hindu Marriage Act, 1955

8) Child Marriage Restraint Act, 1929

9) The Medical Termination Of Pregnancy Act, 1971

10) National Commission Of Women Act, 1990

11) The Minimum Wages Act, 1948

12) Bonded Labor System Abolition Act, 1976

13) The Special Marriage Act, 1954

31

14) Foreign Marriage Act, 1969

15) Indian Divorce Act, 1969

16) The Indecent Representation of Women Prohibition Act, 1986

17) Guardians & Wards Act, 1869

18) Equal Remuneration Act, 1976

The above list is not conclusive but inclusive. These acts have given ample

provisions to ensure the protection of women rights like minimum wages, protection

from domestic violence, right of equal remuneration, prevention from immoral

trafficking, prevention from indecent representation of women etc. So there is no

doubt that our judiciary and legislature has taken various effective steps to ensure the

dignity of women.

To conclude I would like to say that Indian women has come a long way and

prove that she is capable of doing anything and equal partner in the growth and

prosperity of the nation. Women are one of the pillars of the society and it would be

very difficult to imagine society without the presence of women. Now it is high time

for all of us to understand the power of women. Even our judiciary and legislature has

also accepted the fact that women are one of the most important elements of society

and their exploitation would not be accepted at any cost. There is one saying that

behind every successful man there is a woman. This saying is enough to prove that

man and women both are necessary element of society. Women plays different role in

her life which is not an easy task. During her life she acts as daughter, wife, sister and

mother at different stages of life. So we must give them due care and respect and

understand their efforts towards welfare of the society at large. Through this article I

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.

32

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 Administration16 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.17 Hence, 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

16 AIR 1980 SC 157917 http://www.vakilbabu.com/Laws/SubList/SList.htm18 The Prison Act, 1894, Section 2, 1894, Section 24 (3).

33

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

personal) at the time of delivery. Women prisoners who are pregnant cannot

19 http://Woman & Child Prisoners\Rights of Prisoners in India.htm

34

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 women’s 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

35

contagious conditions; the noting of physical or mental defects which might

hamper rehabilitation, and the determination of the physical capacity of every

prisoner for work.

7. Rule 25 (1) that the medical officer shall have the care of the physical and

mental health of the prisoners and should daily see all sick prisoners, all who

complain of illness, and any prisoner to whom his attention is specially

directed. (2) The medical officer shall report to the director whenever he

considers that a prisoner’s physical or mental health has been or will be

injuriously affected by continued imprisonment or by any condition of

imprisonment. Rule 26 (1) that the medical officer shall regularly inspect and

advise the director upon: (a) The quantity, quality, preparation and service of

food; (b) The hygiene and cleanliness of the institution and the prisoners; (c)

The sanitation, heating, lighting and ventilation of the institution; (d) The

suitability and cleanliness of the prisoners’ clothing and bedding; (e) The

observance of the rules concerning physical education and sports, in cases

where there is no technical personnel in charge of these activities. (2) The

director shall take into consideration the reports and advice that the medical

officer submits according to rules 25 (2) and 26 and, in case he concurs with

the recommendations made, shall take immediate steps to give effect to those

recommendations; if they are not within his competence or if he does not

concur with them, he shall immediately submit his own report and the advice

of the medical officer to higher authority.20

8. The National Commission for Protection of Child Rights (NCPCR) has

recommended that women in jail who are pregnant, ill or have children

dependent on them should be considered for early release on personal bonds. 20 http://unispal.un.org/UNISPAL.NSF/0/70D535E1E3DCA2B885256F010074 C34D

36

The guidelines prepared by NCPCR state that while the nature of the crime

cannot be overlooked, the condition of women prisoners could be considered

when they have few means and are responsible for young children.21

9. Article39A of the Constitution of India empowers the women prisoners to

secure freelegalaid. It provides that the State shall secure that the operation of

the legal system promotes justice, on a basis of equal opportunity, and shall, in

particular, provide free legal aid, by suitable legislation or schemes or in any

other way, to ensure that opportunities for securing justice are not denied to

any citizen by reason of economic or other disabilities. But the question arises

whether the legal aid provided is sufficient. Every prisoner has the right to

seek legal aid if needed. Just because a person has been sentenced to

imprisonment doesn’t mean his rights can be violated.22 The report of Dr.

(Miss) A.R. Desai, Director of the College of Social Work,

NirmalaNiketan, Bombayin the case of SheelaBarsevs State of

Maharashtra23 stated among other things that there was no adequate

arrangement for providing legal assistance to women prisoners and that two

prisoners who were foreign nationals complained that a lawyer duped and

defrauded them and misappropriated almost half of their belongings and

jewellery on the plea that he was retaining them for payment of his fees.

Supreme Court in SunilBatravsDelhiAdministration24 held that Lawyers

nominated by theDistrictMagistrate, SessionsJudge, High Court or the

Supreme Courtwill be given all facilities for interviews, visits and

21 http://articles.timesofindia.indiatimes.com/2008-05-23/india/27771005_1_women- prisoners-ncpcr-

legal-aid22 http://Woman & Child Prisoners\'Jails should reform prisoners' - Times Of India.htm23

24 AIR 1980 SC 1579

37

confidential communication with prisoners subject to discipline and security

considerations. The lawyers so designated shall be bound to make periodical

visits and record and report to the concerned courts, results which have

relevance to legal grievances. The Legal assistance to a poor or indigent

accused, arrested and put in jeopardy of his life or personal liberty, is a

constitutional imperative mandated not only by Article 39A but also by

Articles 14 and 21 of the Constitution. It is a necessary sine qua non of

justice and where it is not provided, injustice is likely to result and undeniably

every act of injustice corrodes the foundations of democracy and rule of law.25

10. Section303 of the Criminal Procedure Code, 1973 empowers the prisoners

to be defended by the pleader of their choice and Section304 of this code

provides that in certain cases legal aid is to be provided at state expense.

309(1) of the criminal procedure code provides that in every inquiry or trial,

the proceedings shall be held as expeditiously as possible. Similarly, mere

sentence does not restrict the right to freedom of religion.

11. Women prisoners have the right to speedy trial. There is an undoubted right of

speedy trial of undertrial prisoners, as held in a catena of cases of Supreme

Court. The Supreme court of india in the case of HussainaraKhatoonvs

Home Secretary, State of Bihar 9. Section 303 of the Criminal Procedure

Code, 1973 empowers the prisoners to be defended by the pleader of their

choice and Section 304 of this code provides that in certain cases legal aid is

to be provided at state expense. 309 (1)of the criminal procedure code

provides that in every inquiry or trial, the proceedings shall be held as

25SheelaBarsevs State of Maharashtra, AIR 1983 SC 378

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 country’s 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

attended by representatives from the Law Commission of India, the National Human 26 (1980 ) 1 SCC 81. http://www.lfhri.org/index.php/judgements/human-rights-judgements/22-speedy-

trial27 http://www.vakilno1.com/bareacts/CrPc/s54.htm28 R.D. Upadhyayvs State of A.P. &Ors, AIR 2006 SC 1946.29 http://Woman & Child Prisoners\Prison Law and Regulations Indian Law.htm

39

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 day’s 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

day’s sessions, chaired by Justice Leila Seth, Member, Law Commission of India,

discussed the subject of prisoner’s 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 prisoner’s 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

MullaCommittee. The National and the State Human Rights Commission have also,

40

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 court’s 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.

It is thus the above two themes- ‘prison administration’ and ‘prisoners’

rights’- are brought under focus in this workshop.

30 Dr. Kurt Neudek, The United Nations in Imprisonment Today and Tomorrow- International

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 151432 Jon Vagg. Prison System- A Comparative Study of Accountability in England, France, Germany and

the Netherlands, Clarenden Press, Oxford 1994

41

This projectsummarises the deliberations of the workshop, highlighting the

important issues which emerged during the deliberations and the important

recommendations which were made during the sessions. The report does not present

the deliberations in the chronological sequence in which they were held but groups

them under different thematic heads.

3.1 PRISONERS’ RIGHTS:

The Constitution of India confers a number of fundamental rights upon

citizens. The Indian State is also a signatory to various international instruments of

human rights, like the Universal Declaration of Human Rights which states that: “No

one shall be subject to torture or cruel, inhuman or degrading treatment of

punishment”33. Also important is the United Nations Covenant on Civil and Political

Rights which states in part: “All persons deprived of their liberty shall be treated

with humanity and with respect for the inherent dignity of the human person” 34.

Therefore, both under national as well as international human rights law, the state is

obliged to uphold and ensure observances of basic human rights.

One of the best tenets of human rights law is that human rights are inalienable

and under no circumstances can any authority take away a person’s basic human

rights. The fact that this tenet is not sometimes made applicable to prisoners is well

documented. There are innumerable judgements of Supreme Court and High Courts,

showing how prisoners’ rights are violated. The judgement highlighted the highly

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

33 Universal Declaration of human Rights, Article 5.34 United Nations International Covenant on Civil and Political Rights, Article 10

42

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

Handcuffs, Right to Communication and Information, Right to Counsel, Right to Writ

of Habeas Corpus and the Right to Air Grievances.

Besides discussing the legal sources of the rights, the paper made some

suggestions which could prove helpful in ensuring an element of transparency and

35 Source: Ministry of Home Affairs, Government of India36 J Guha Roy, Prisons and Society: A Study of the Indian Jail System, Gian Publishing House, New

Delhi. 198937 Report of the All India Committee on Jail Reforms, 1980-8338Prisoners’ Rights – Need for Transparency and Accountability – CHRI’s paper presented at the

Workshop

43

accountability in prison administration. Some of the suggestions made in CHRI’s

paper will be discussed later in this project.

3.2 PRISON CONDITIONS: FIRST HAND

The workshop provided a unique opportunity to ex-prisoners to narrate their

experiences, and to the delegates to share and learn from them about the conditions

prevalent behind the prison walls. The family members of ex-prisoners, who also

spoke at the workshop, informed the delegates about the sufferings and hardships

faced by them while coping with the problems of detention of their close relatives in

the prisons. This session constituted a very important part of the workshop, as the ex-

prisoners and their family members gave fairly graphic, vivid and moving accounts as

well as valuable insights into the problems of those held in custody.

The first speaker in this session, Mr. Guddu Koshti, had been in and out of

prisons on several occasions during the last 18 years. He mentioned that he was

transferred from prison to prison throughout the state and once even out of the state to

Maharashtra. This, he alleged, was due to his continued protests against the appalling

conditions prevailing inside the prisons and against the abuse of authority by the

prison staff. He spoke of the atmosphere of repression existing in prisons which

discourages the prisoners from voicing their grievances and complaints against

authority. Mr. Koshti said that the extreme ‘third degree’ measures that he had been

subjected to during the eighteen long years had left him far too weak physically to

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.

44

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

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

45

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 one’s 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.

3.3 THE PROBLEMS:

The complaints of the ex-prisoners and their relatives need to be highlighted

not as cases of individual suffering but as examples of the general systemic malaise

that affects the prison system, leading to serious human rights violations. The

46

following are some of the important problems of the prisons and related issues, having

a bearing on prisoners’ rights, which were discussed by the workshop.

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

of 3-4 hours due to lack of space.

Overcrowding has also begun to affect the attempts of the prison

administration to empower prisoners with skills that would involve them in

gainful employment after release. These attempts come in form of workshops

where prisoners are taught carpentry, printing, binding, doll-making, typing

etc. however, due to the pressing need for space, more and more workshops

are being used to house prisoners. In Madhya Pradesh, currently only 16 out of

120 prisons can afford the luxury of maintaining workshops and these are also

increasingly coming under threat due to the increasing problem of

overcrowding.

According to Dr. Hira Singh, Consultant, NHRC, optimum population

capacity of prisons needs to be assessed and provisions made accordingly.

47

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

by the year 2012-13 it would go up to 151.18%.39

A serious and long term solution to the problem of overcrowding in prisons

needs a review of the functioning of the entire criminal justice system,

including the system of arrests, sentencing policies and notions of crime.

The National Police Commission had pointed out that 60% of all arrests were

either unnecessary or unjustified.40 The police often look upon imprisonment

as an easy solution and use preventive sections of law, like 151 of the

Criminal Procedure Code indiscriminately. The liberal use of the power to

arrest, while contributing significantly to the problem of overcrowding, leads

to increased expenditure on jails. One way to deal with the problem of

overcrowding is to decriminalise certain offences and find alternatives to

imprisonment, particularly in petty offences and make minor offences

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

39 Source: Prison Headquarters, Madhya Pradesh.40 The National Police Commission: The Third Report, Chapter XXII, 1980

48

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 department’s requirement of escorting prisoners. It was

suggested that the armed police sanctioned for this purpose should always be

kept at the disposal of the prison department.

Prisons are also being used as multipurpose institutions, to house not only

those convicted of crimes but also those who do not need incarceration but

medical and psychiatric treatment. Although there are many judgements of the

higher courts denouncing the use of prisons as homes for the mentally ill, the

practice continues to exist at some places.

3.5 UNDERTRIALS AND LEGAL AID

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

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.

49

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

just to avoid being kept in prison as an undertrial.

Professor B. B. Pande of the Faculty of Law, University of Delhi, informed

the workshop about the work that was done by him and his students in Tihar

Jail in the field of legal aid. Legal Aid consists of four essential components.

The first step is to impart legal literacy with the aim of spreading awareness

amongst prisoners about their rights and obligations and sensitising the prison

administration. legal aid must help the prison system in reducing reforms. The

next step is that of litigation, where the legal aid workers take up cases of

prisoners in courts and see that justice is done. It would also be necessary to

keep identifying those who need and deserve legal aid. To make legal aid

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

50

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

was discussed as essential to the entire system of legal aid.

As observed by the Mulla Committee, most prison inmates belong to the

economically backwards classes and this could be ->attribute<- to their

inability to arrange for the bail bond. Legal aid workers need to help such

persons in getting them released either on bail or on personal recognisance.

Bail provisions must be interpreted liberally in case of women prisoners with

children, as children suffer the worst kind of neglect when the mother is in

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.

3.6 HEALTH CARE AND MEDICAL FACILITIES

The problems relating to the health of prisoners and lack of adequate

medical facilities in Indian prisons received considerable attention in the

workshop. Justice Venkatachaliah referred to a recent study of custodial

deaths in judicial custody done by the NationalHuman Rights Commission,

which revealed that a high percentage of deaths were attributable to the

incidence of tuberculosis amongst prisoners. In recent times, there has also

been a disturbing rise in the percentage of HIV positive inmates. Special and

urgent care is required to look after such cases.

51

Due to overcrowding, inmates have to live in extremely unhygienic

conditions, with little concern for health or privacy. Often cells built to house

one or two persons now accommodate twice or three times the number. Most

toilets are open, denying the prisoner his basic right to privacy and human

dignity, and are also dirty. Water shortage being the rule than the exception

the toilets prove to be the ideal breeding grounds for health, hazards 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

52

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

regard themselves as the caretakers of the inmates.

53

The Mulaizha, which is the first medical examination of the individual

when he is admitted to the prison, is generally regarded as a mere routine 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 examination of the prisoners.

Drug addiction is on the increase in prisons and in many cases leads to other

diseases, such as AIDS and Tuberculosis. The nexus between drugs and crime

is getting stronger day by day. Mr. SankarSen, Director General

(Investigations), National Human Rights Commission, said that there was

evidence that large drug gangs recruited inmates from prisons to increase the

use of drugs. There exist, according to Dr. Hira Singh, 30,000 drug addicts in

Indian jails. The rise in incidence of drug abuse could be related to the rise in

corruption and the easy access that miscreants outside may have to inmates. A

careful monitoring is needed alongwith adequately equipped drug de-addiction

centres. Justice Seth spoke about Aashiyana, a drug de-addiction centre in

Tihar Jail. However Aashiyana too has started facing the problem of

overcrowding. There is, therefore, an urgent need to get as much aid as

possible from civil society and NGOs. NGOs should be encouraged to work

inside the prisons and their efforts should be supported and supplemented by

those of prison administration.

54

Besides suffering from physical ailments, the prisoner also undergoes

considerable stress and trauma during his stay in prison. Imprisonment is often

accompanied with depression and a feeling of isolation and neglect. It was

therefore felt that active counselling must be made available to the prisoners to

overcome these problems. Counselling should aim not merely at providing

temporary relief by pulling them out of their depression, but at instilling hope

and a sense of purpose in them and by equipping them with skills that may

prove useful upon release.

Justice Seth suggested the need for a thorough overhauling of the

arrangements in prisons to provide medical care and facilities. Most prisons

are not equipped with an effective communication system that would inform

the concerned authorities in case of a medical emergency. Besides establishing

such a system, inmates must be thoroughly briefed about how to seek medical

aid in case of emergency.

3.7 WOMEN PRISONERS:

The workshop discussed the need to sensitise the prison administration to

gender issues and specific needs of women prisoners. Mr. Bhagat informed the

workshop that during inspection of several jails, it was found by the

M.P.H.R.C. that a large number of women prisoners were detained in jails as

undertrials for a long time. Women, due to their ignorance, are not even

getting the benefit of proviso to Section 437 Cr.P.C, according to which they

can be released on bail even in non-bailable cases. The Commission has now

insisted on the prison authorities to take up the cases of women undertrials

with courts so that they can be released on bail.

55

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

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.

41Report of the All India Jail Committee, 1980-8342 Source: The Prison Department, Madhya Pradesh43Prisoner’s Rights, including Women’s Rights – A paper presented in the workshop

56

3.8 CLASSIFICATION OF PRISONERS:

The rationale behind the existing system of classification of prisoners came up

for discussion in the workshop. It was considered essential to prevent undertrials, first

timers and casual prisoners from being influenced, bullied and abused by the few but

dominant hard core criminals in prison. It was observed that juveniles or young

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

classification was challenged.

The Committee, in its report, mentioned that the existing system of

classification, based on criteria, like social status, education, habit, mode of

living etc. was repugnant to the concept of equality propounded by Article 14

of the Constitution of India and should be abolished. The broad criteria for

segregation of prisoners, according to the Committee, should include

Convicts, Undertrials, Age, Nature of Crime, Previous History (whether

habitual or casual), Prison Term, Kind of Sentences, Nationality, Civil

Prisoners, Detenues, Security Requirements, Disciplinary or

Administrative requirements, Correctional Educational or Medical

Needs.

57

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

was also stressed that the poor working conditions could not be regarded as an excuse

for violation of prisoners’ rights.

4.1 PRISON STAFF-WORKING AND SERVICE CONDITIONS:

Central to the prison administration is the problem of demoralization

and lack of motivation of the prison staff that was reiterated by most

participants in the workshop, particularly those belonging to the prison

department. It was pointed out that the conditions in which the lower

echelons of the prison staff lived were in some cases worse than those

of the prisoners. This was seen as an important factor contributing to

the poor functioning of the prisons, apathy of the prison staff towards

the plight of the prisoners, corruption and the over all deprivation of

the prisoners of their basic amenities. Such substandard conditions of

service produce a culture of frustration and dehumanisation in the

service which often spills over and gets translated into aggression on

prisoners. As expressed by members of the prison staff and

acknowledged by other delegates, the conditions of work create an

environment that discourages initiative, leadership qualities and

enlightened rights based approach.

58

Mr. Aivalli, Additional DG Prisons of Jammu and Kashmir

pointed out44 that the prison administration has basically three levels –

the management level (DG/IG/DIG etc.); the supervisory level (the

Superintendents/Deputy or Asst Superintendent/ Jailers etc.); and the

grassroots level (Head Warden/Wardens etc.). The officers at

management level, majority of whom are on deputation from the police

service, consider this as a punishment posting and are generally too

demoralised to contribute significantly to the building up of the

department. Most of them are merely time servers. The supervisory

level, consisting of staff belonging to the prison service, too is

demoralised because of poor service conditions, lack of career

opportunities and low public esteem. At the grassroots level, the

department has people who remain inside the prison walls, interacting

with prisoners most of the time. This factor, combined with their

pathetic service conditions, has the effect of dehumanizing them. Some

of them develop vested interests and join hands with criminals. Mr.

Aivalli suggested drastic changes in the organizational structure,

control and service conditions of the prison department. The package

suggested by him would require (a) having a common cadre for prison

and fire services at grassroots level, with rotational cycle of postings to

be effected after putting them through refresher courses; (b) providing

a professional and better supervisory level by prescribing higher

qualifications with better emoluments and status; and (c) having a

judicious and humane management level by having judicial officers at

44Prison Administration – A paper presented by Mr. VeerannaAivalli, Additional DGP, Prisons and

Fire Services, Government of J&K in the workshop

59

the helm of affairs and placing the administrative control of the prison

department with the State High Courts. It was felt that the suggestions

at (a) and (c) would not be acceptable.

Mr. Agarwal was of the opinion that the prison administration was not

able to recruit and retain competent people due to its unattractive

service conditions and lack of recognition by the government and the

public of the needs of the department. It was suggested by him that the

recommendation to set up an All India Prisons Service made earlier by

Dr. W.C. Reckless, an UN expert, who was invited by the

Government of India to study prison problems in the country (1951-52)

and other recommendations contained in the reports of the All

IndiaJail Manual Committee (1957-58),the Working Group on

Prisons (1971-72), the Mulla Committee (1980-1983) and by the

Kapoor Committee (1988) should be implemented by the Central

Government.45

Mr. Agarwal further pointed out that most prisons suffer from severe

under staffing. He indicated the need for other infrastructure related

posts, like those of engineers who could aid in making living and

sanitary conditions more comfortable for inmates and thus lessen the

load on the prison staff. He said that support was required from

departments like the PWD or the Health department to ensure the

smooth running of prisons. A conscious policy towards the induction

of women in the prison administration is necessary to bring about a

gender balance and sensitivity within the system. This could create a 45Role of Prison Personnel and their Problems – A Paper presented in the workshop by Mr. G.K.

Agarwal, Additional IG (Prisons), MP

60

more tolerant culture towards marginal and weaker sections within

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

work load of the prison staff. The prison department is constantly

short of manpower and the system of appointing convicts as

warders does prove helpful in meeting the shortage of manpower

at the grassroots level. This viewpoint expressed mostly by the prison

staff was challenged by others in the workshop. It was pointed out that

the system was being misused and the convict warders were generally

working as touts of prison authorities, misusing their positions to

terrorise other prisoners and thus commit gross human rights

violations. Mr. Hira Singh vehemently opposed the retention of the

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

61

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

plea for improvement in the remuneration and promotion prospects for

different ranks in the prison department. It was suggested that the pay-

scales of jail-employees should be similar to those sanctioned for

equivalent ranks in the police department. This recommendation had

been made earlier by the Kapoor Committee too.

The posts of Naib-Tahsildars, Sub-Inspectors of Co-

operativeSocieties/ExciseDepartment and AssistantJailers are kept

at par for selection by the M.P. PublicServiceCommission. Though

the academic qualifications prescribed for the examination are the

same and selection is done through a common examination, yet the

Government in the very beginning downgrades the posts of the prison

department by prescribing lower scales of pay for the posts of

Assistant Jailer. While the pay-scale for other posts is Rs. 1400-2340,

the one for AssistantJailer is Rs. 1320-2340. Consequently, the prison

department figures very low in the priority of the aspiring candidates. 46Motivating and Developing Prison Staff; Mr. Justice S Awasthy, Member, MP Human Rights

Commission

62

Justice Awasthy also made a plea for improving the promotion

prospects of the people who join at this rank by creating additional

posts at the level 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,

on an average, 50 years of age. As each promotion requires at least five

years experience in a given post, by the time this requirement is

fulfilled, the Deputy Jailer is often close to retirement age. The

problem, according to Mr. Sharma, is that after Independence, unlike

other service like the police, few posts have been added to the prison

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.

63

4.2 TRAINING:

Expressing serious concern over the extent of dehumanisation amongst prison

staff, Mr. Justice Venkatachaliah underlined the need for periodic

counselling and training of prison staff. There was a general feeling amongst

the delegates in the workshop that training of the prison staff had been

completely neglected by the prison department.

Very few States/Union Territories have set up institutions exclusively for the

training of prison staff. A state as large as Madhya Pradesh, with a

substantial prison population, does not have a single training institute for its

prison officers. The officials are being sent to Lucknow for training purposes.

Many of the prison staff from Madhya Pradesh present in the workshop

seemed unsure of the nature and scope of training provided even in the

Lucknow training institute, thus indicating their minimal exposure to and

awareness of the existence of training facilities that could be available to them.

According to Mr. Aivalli, there was no specified training institute fir prison

staff till last year in Jammu and Kashmir.

According to Mr. SankarSen, Director General, (Investigations), NHRC,

wherever training is available, it is in the hands of those members of the police

and prisons staff who are found redundant for active service and are

transferred to the training department. Postings in training institutions are

considered a sign of punishment. This is most unfortunate as training, which is

such an important function, is placed in charge of those who have neither the

required aptitude nor the competence for the job thrust on them. All this needs

to be changed and training of prison staff needs to be assigned to those who

have the required vision and understanding of the prison problems.

64

The workshop suggested that the State Governments should be persuaded to

establish training institutions exclusively for the basic as well as in-service

training of the prison staff. It was felt that human rights needed to be central to

all training programmes. The NHRC and the State Human Rights

Commission should ensure that the human rights component is made central

to all prison training modules adopted and implemented by the prison training

institutions.

4.3 ACCOUNTABILITY

As we have seen in the earlier sections, the deplorable service conditions of

the prison staff and their lack of motivation and self esteem seem to logically

extend into a culture that encourages corruption and malpractices. It was

recognised in the workshop that the problem of corruption in the prison

administration was inextricably linked to the violations of human rights of

prisoners.

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

reforms in the state prison conditions.

65

The paper presented by CHRI places stress on the need to educate prisoners

about their rights.47 Violations in many cases occur because of lack of

awareness on the part of prisoners about what they are entitled to. Educating

them about their rights would have the effect of empowering them. It was

suggested that a Manual, explaining to the prisoners their rights and

obligations, procedure for lodging complaints, the conduct that is expected of

jail administration etc. should be prepared in simple language for prisoners’

benefit. In fact, such a Manual would benefit the jail administration also by

providing them clear guidelines in important areas of their work. The Manual

should be supplemented by the efforts of the NGOs to do legal literacy work

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

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,

social workers, jurists, retired public servants etc.

Another pre-requisite to ensuring accountability is to establish an effective

complaint system that would encourage prisoners to complain against 47Prisoners’ Rights: Need for Transparency and Accountability – A Paper presented in the workshop

by Ms. Marion Macgregor of the CHRI

66

systemic and other failures within the prison system without fear of

retribution. Once a complaint is made, there should be a quick and impartial

enquiry followed by providing redress if the complaint is found to be true. No

attempt should be made to suppress wrongdoing and anyone found guilty of

abusing his authority must be suitably dealt with. If appropriate disciplinary

action is taken, not only does the prisoner feel that his or her rights have been

upheld but it also sends a warning to other staff that poor conduct will not be

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.

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

contained in the reports and judgements had remained mostly unimplemented.

67

An important factor responsible for lack of follow-up action has been the

absence of political will, leading finally to bureaucratic apathy towards

the requirements of prison administration. This apathy is reflected in the

scarcity of funds spared by the Governments out of their annual budgets for

prison administration. As was shown in CHRI’s paper presented by Ms.

Marian, the percentage of funds allocated for prison administration out of the

budgets of the Union and State Governments has shown a consistently

declining trend, even though there has been some increase in absolute

expenditure on prisons. An opinion was expressed in the workshop that this

lack of political will was due to the fact that the prisoners did not constitute an

important constituency for the politicians, as they have no right to vote. The

workshop, therefore, recommended that the existing laws and arrangements

should be reviewed so that the prisoners could exercise the right to vote, like

any other citizen.

The need to evolve a mechanism to ensure follow-up action on the

recommendations of the committees, conferences and workshops and on

judgements of courts was also discussed in the workshop. This would require

monitoring and it was felt that the National and State Human Rights

Commissions could play an active and prominent role in monitoring prison

conditions and ensuring action by the concerned authorities to introduce

reforms.

4.5 THE NEW PRISONS BILL

The new Prisons Bill drafted by the NHRC called the Prisons

(Administration and Treatment of Prisoners) Bill, 1998 was brought up

68

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

visitors should be mandated to examine all aspects of prison life and not be

restricted to a number of defined issues, as the new Bill does.

The non-official visitors, according to the Bill, are to be appointed by the

Inspector General of Prisons. After visiting the prisons, they are then

required to report back to the Inspector General. This provision thus marks a 48 Discussion Paper on the Prisons (Administration and Treatment of Prisoners) Bill, 1998 by Ms.

Catherine Pierce, Researcher, CHRI

69

retrograde step in terms of ensuring the impartiality and independence of

visitors. There is no scope for external oversight of the prison administration.

It was felt that the National and State Human Rights Commissions should be

given the mandate to appoint visitors who should then report back to the

commissions and also make their report public through the active and effective

use of the media.

Delegates at the workshop, including Mr. SankarSen and Mr. Aivalli, felt

that opening the prisons to civil society organisations would lead to greater

transparency and accountability in the prison administration. The new Bill

must incorporate some provisions to institutionalise such arrangements.

The new Bill establishes in Chapter IV the right of the prisoner to appeal to

the prison authorities for any lapse in the provision of basic amenities and

facilities, arbitrary punishment or any other matter considered legitimate. The

Bill fails to provide for an impartial body independent of the prison

administration to hear prisoners’ complaints.

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.

4.6 RECOMMENDATIONS

The workshop made several recommendations which have been stated at

different places in the report. To avoid repetition, we have not reproduced the

recommendations from the above text. However, to provide a bird’s eye view

70

of the ground covered by the workshop, a summary of the recommendations in

a capsule form is provided under different heads:

4.7 OVERCROWDING

Optimum capacity of prisons needs to be assessed. Central Jails should not

house more than 750 inmates and district jails not mare than 400.

Certain offences should be decriminalized and alternatives to imprisonment

should be designed to deal with such cases.

Some more offences should be added to the list of compoundable offences

prescribed in law.

Unnecessary and indiscriminate arrests should be avoided by police personnel.

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.

4.8 UNDERTRIALS AND LEGAL AID

An Amendment should be made in the Cr.P.C. to enable an undertrial prisoner

to plead guilty at any stage of the trial.

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.

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.

71

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.

4.9 HEALTH CARE AND MEDICAL FACILITIES

It is necessary to review the strength of doctors sanctioned for prisons and

ensure the availability of adequate medical facilities for prisoners and prison

staff.

Arrangements must be made to look after the special requirements of women

prisoners. At least one woman medical officer must be available at times to

attend to women prisoners.

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.

72

Adequate infrastructural health care facilities, like well-equipped ambulances,

stretchers, dispensaries, hospital beds etc. should be made available to the

prison administration.

Suitable arrangements should be made to provide psychiatric counselling to

those suffering from chronic depression, particularly to women prisoners.

There should be a clearly defined system of responsibilities of the prison staff

in case of a medical emergency, which should be made known to prisoners

through a chart or pamphlet.

NGOs’ help should be enlisted in dealing with drug addicts and in establishing

drug de-addiction centers.

4.10 WOMEN PRISONERS

Programs should be implemented to sensitize the prison administration on

gender issues and the special needs of women prisoners.

Besides special facilities for pregnant women, arrangements should be made

to allow women to go back to their families for post natal care.

It is necessary to take special care to rehabilitate women prisoners, as it is

harder for them to find acceptance in civil society upon release than men. Thus

women should be specially equipped with vocational skills to empower them

on their return to society.

Arrangements should be made for women to reside in special homes if they

find it difficult to get accepted in society after release.

4.11 CLASSIFICATION OF PRISONERS

73

Classification of prisoners on the lines of education, income tax status or

socio-economic background should be abolished and it should be done on the

lines suggested in the Justice Santosh Duggal Committee Report.

4.12 IMPLEMENTATION

A mechanism should be evolved to monitor and ensure the implementation of

various recommendations made by different expert committees, courts and

workshops from time to time. The NHRC and the State Human Rights

Commissions could take up this work and ensure that follow-up action is taken

to implement the recommendations.

Existing laws and arrangements should be reviewed so that prisoners could

exercise their right to vote.

4.13 PRISON STAFF

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.

Most prisons suffer from shortage of manpower. The State Governments

should periodically review the requirements of different types of staff

required, including medical, and take steps to remove the shortage.

There is considerable stagnation amongst different ranks in the prison

department due to lack of promotion opportunities. The governments should

carry out a cadre review and create additional opportunities for promotion for

different ranks based on a work study.

74

The posts of convict warders should be abolished and an equivalent number of

regular number of regular posts should be created to meet the requirements of

manpower.

A conscious policy towards the induction of more women in the prison

administration is necessary to bring about gender balance and sensitivity

within the system.

The pay-scales of lower ranks in the prison department need to be reviewed.

The State Governments should not downgrade the posts of the prison

department by prescribing lower pay scales for them as compared to the posts

of the other departments, particularly when the recruitment to these posts is

done by the State Public Service Commission on the basis of a combined

recruitment test.

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

It is necessary to organise periodic training programmes and refresher courses

for all levels in the prison administration.

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

A Manual, explaining to the prisoners their rights and obligations, procedure

for lodging complaints, the conduct that is expected of jail administration etc.,

should be prepared in simple language for prisoners’ benefit. The Manual

should be supplemented by the efforts of the NGOs to do legal literacy work

amongst prisoners.

The system of visitors should be made viable to function as an effective

monitoring mechanism. The visitors should be chosen from amongst those

who have an interest in prisons and knowledge of how they should be run.

Appointment of visitors should be done on the advice of the State Human

Rights Commission. The criteria for selection should be made known to the

public.

An effective complaint system should be established which would encourage

the prisoners to lodge complaints without fear of retribution. The complaints

should be enquired into fully and impartially and strict action should be taken

against the persons found guilty. No attempt should be made to suppress

wrong doing by any member of the prison staff.

Prisons should be opened to civil society organisations as this would help in

ensuring transparency and accountability in the prison administration.

76

NEW PRISONS BILL

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 state’s 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 Number of Jail Name of Jail Number of Jail

Women Jail 18 Open Jail 44

Central Jail 123 Borstals Jail 21

District Jail 322 Special Jail 26

Sub Jail 866 Others Jail 3

49 Monitoring Prisons: A Visitors Guide, 2010 by Commonwealth Human Rights Initiative50 http://www.hindu.com/op/2004/04/20/stories/2004042000251700.htm51 National Crime Records Bureau, Ministry of Home Affairs, India

78

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

Number of women prisoners in the

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+Profile53 Supra Note 32.

79

In a National Seminar on Prison Reforms on April, 2013 at Jacaranda Hall,

IHC, New Delhi, at the time of welcoming the participants, Director General

(Investigation), NHRC, Sri Sunil Krishna, said that overcrowding in prisons is one of

the reasons for the unhygienic conditions prevailing in prisons. The strength of

undertrial women prisoners is also a considerable problem to which they are facing

and sometimes they face the custodial torture. According to the National Crime

Records Bureau’s (NCRB) prison statistics, till the end of 2013, 34 deaths of female

inmates were reported in 2010, out of which 5 deaths were suicidal in nature.54

In some cases women prisoners have been spent more time in the jail than the

punishment may be awarded for their committed offence. Only in Tihar Jail as on 30

April 2012, 76.55% women prisoners were undertrial. The data of classification of

women undertrial prisoners in Tihar Jail as per the length of stay in Jail is shown in

table-III.55

Period of Stay in the Prison of Tihar Jai Number of Women Prisoners

Up to 01 month 57

01-03 months 68

03-06 months 39

06-12 months 82

12-24 months 76

24-36 months 25

36-48 months 20

48-60 months 17

Above 60 months 11

Total 365

54 http://sanhati.com/articles/4747/55 http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile

80

The Supreme Court of India is also taking in consideration the problem of

prolonged detention of undertrial prisoners. In, “Common Cause” a Registered

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.

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 women’s 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

Around 2,515 women were undergoing sentences for life imprisonment at

various prisons in the country at the end of 2014, according to National Crime

Records Bureau. This is a sizeable number of women who are wasting away their

lives behind bars and need to be attended to. A total of 1,436 deaths were reported

(1344 natural and 92 un-natural) during 2014 alone. Of these, 34 deaths were those of

female inmates, of which 5 deaths were suicidal in nature.

Moreover, jails exclusively for women prisoners exist only in 12 States and

union territories such as Tamil Nadu, Andhra Pradesh, Kerala, Rajasthan and West

Bengal (two each), Bihar, Maharashtra, Odisha, Punjab, Tripura, Uttar Pradesh and

Delhi (one each).

The overcrowding and unhealthy prison conditions may also take a toll on the

physical and mental well being of a woman in custody. There is a need to provide

dignity and hygiene to women who serve long sentences inside as well as undertrials.

The total capacity of women inmates was highest in Tamil Nadu (1,070) followed by

Uttar Pradesh (420), West Bengal & Delhi (400 each), Rajasthan (350), Andhra

Pradesh (308), Maharashtra (262), Punjab (150), Bihar (83), Kerala (72), Odisha (55)

and Tripura (30) , according to NCRB data.

In such a scenario, it is important for voluntary organisations and other

independent groups to have access to these women for research so that a clearer

picture about their condition and needs can be brought to the surface.

“…there is a stereotype of the imprisoned woman as well which is as much in

need of being shaken off as any other stereotype. Constructing stereotype images of

women ‘inside’ is dangerous because these women are not in a position to resist the

constructs imposed on them. Even without contact with women prisoners (who may

83

or may not have committed offences) or direct knowledge of prisons, self-styled

experts are able to flaunt views that pass for knowledge about these subjects,” says

Rani.

5.1 LACK OF NECESSITIES

Women prisoners in India do not even have proper accommodation or

recreation. Basic facilities are lacking for the women and their children. Women

prisoners are also visibly scared of the prison staff. There is scope for vast

improvement, on all levels, particularly in the attitude of the prison staff that need to

learn to respect the human rights of women prisoners.57

Most of the women prisoners are also mothers and their children are staying

with them in the prison but the prison is not a place for healthy growth of a child.

Prison environment affects the growth, survival and development of the children.

Children who stay with their mothers in prisons are denied their basic rights to pre-

school education.58

While in jail, communication with outside world gets snapped with a result

that the inmate does not know what is happening even to his near and dear ones. This

causes additional trauma.59

In Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and

others60, The Supreme Court held that the power of preventive detention has been

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

57 http://ijg.sagepub.com/content/16/2/25358 http://edition.myjoyonline.com/pages/news/200705/5199.php59 Rama Murthy vs State of Karnataka, AIR 1997 SC 173960 AIR 1981 SC 746.

84

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

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

61 http://ihranewdelhi.com/hr_prisons.html

85

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, Sub-

Inspector 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 Jail’s 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 for Women, Vellore, Tamil Nadu, as a remand prisoner having been

62 http://www.panthic.org/articles/539463 http://articles.timesofindia.indiatimes.com/2011-03-08/chennai/28667863_1_women-prisoners-

tiruchi-jail-wardens64 http://articles.timesofindia.indiatimes.com/2012-04-22/delhi/31381841_1_jail-warden-tihar-jail-jail-

staff

86

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

Court65 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

65 P. Pugalenthivs The State of Tamil Nadu on 17 July, 200966 http://Woman & Child Prisoners\The Hindu States Tamil Nadu Judge discrimination against women

a global phenomenon.htm67 G:\Woman & Child Prisoners\Delhi - All India Meet on Women Prisoners and Custodial Violence,

Mar 31 at Sanhati.htm

87

5.3 INACCESSIBILITY OF LEGAL SERVICES

Women prisoners are not getting satisfactory legal aid in the prisons.

Inaccessibility of legal services is a major problem which needs to be resolved. Final

Annual Report 2013-2014 of National Human Rights Commission provides that in

most of the jails visited in India, there is need to strengthen the legal aid system so

that the qualified lawyers are provided to all those who cannot afford their services.

Unawareness about the law and procedure amongst the women prisoners is also a

major problem. According to “Progress of the World’s Women” a report by the

Assistant Secretary General of United Nation Women, uneducated women have lack

of awareness about the judicial system and their rights.68

Women, due to their ignorance, are not even getting the benefit of proviso to

Section 437 Cr.P.C, according to which they may be released on bail even in non-

bailable cases. Bail, in non-bailable offences, is not a matter of right of the accused

person. Section 437 of the Code of Criminal Procedure envisages the provision as

regards bail in case of non-bailable offences, which may or may not be granted

depending on the discretion of the court. But proviso to this provision exempts

women, and empowers court to grant bail to a woman irrespective of the gravity of

the crime.69

5.4 REHABILITATION OF WOMEN PRISONERS

Crime itself is not a disease though it may due to disease.This is perfectly true

in respect of women in conflict with law.Tamil Nadu is one of the few states where

women inmatesarehoused in separate prison exclusively built for women keeping

inview their special requirement. The prison establishment is alsosupervised fully by 68 http://www.youthkiawaaz.com/2012/02/the-deplorable-condition-of-women-prisoners-in-india/69 http://legaljunction.blogspot.in/2011/11/proviso-to-section-4371-of-crpc-is-bail.html

88

women prison officials. The total strength ofwomen inmates’ population in the

country is 14,657 and theaverage in Tamil Nadu is about 1000 which is about 6% of

total prison population in the State. There are several issues relating to women

inmates. They can be categorized as (i) Admission (ii) Classification (iii) Reformation

Programme (iv) Vocational Training (v) Health and Hygiene (vi) Psychological

emotional issues (vii) Visitors and emergency leave (viii) Rehabilitation on release

(ix) Resocialisation and acceptance. Women prisoners on admission are in a mentally

disturbed condition. A study has revealed that nearly 60% of inmates suffer from

various issues of mental health like psychosis, major depressions and personality

disorder. Women inmates undergo intensive emotional stress due to separation from

their families. Study of the age profile of the inmates in Tamil Nadu prisons reveals

that of the total 1000inmates about 200 are in the age group of 20 to 30 years, which

isthe child bearing age for women. Almost 350 inmates are in the age group of 30 to

40 years where they have young growing children who are deprived of emotional

support of the mother.

In a land mark judgment in Upadhyay Vs. State of Andhra Pradesh gender

specific issues of women have been dealt in detail and minimum standards have been

laid for care of mother and child. In pursuance of this, woman inmates are allowed to

keep their children up to six years of age. Pregnant women in prisons have to be given

proper Pre natal and Post-natal care. Children born during incarceration shall be

registered in local birth Registration office to avoid stigma of child birth in prison.

Women undergo enormous emotional stress due to separation from the family.

A survey has revealed that women inmates have a fatalistic attitude towards their

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

89

criminal life. They are concerned about their children’s 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

society. It has to be ensured thatthe woman on release is not placed in vulnerable

position withhigh risk of reverting to crime. Substance abuse is not such asignificant

90

problem as in western countries or in most of the AsianCountries. Social acceptance

and domination by spouse forcing ahapless woman to deviance are two major

challenges to Correctional Administration.

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.

The relevance of gender issues

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

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

91

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

and do not cater to the special needs of women prisoners.

Women in prison have a double disadvantage. The gender disadvantage and

discrimination gets worsened during imprisonment, which is further amplified

upon their release from prison. Gender sensitive interventions need to take into

account psychological distress in a life stage perspective.

As women in prisons are frequently victims of physical and sexual abuse,

United Nations on Human Rights Rule 53 of the Standard Minimum Rules for

the Treatment of Prisoners states that women prisoners must only be guarded

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

resources and treatments, especially during pregnancy.

There are studies which have reported high prevalence of syphilis among

women prisoners as compared to general population. HIV infection is also

high. Women prisoners suffer menstrual disorders, stress, and depression. The

WHO guidelines on HIV infection and AIDS in prisons (World Health

Organization, 1993) contain the following recommendations specific to

women in prison.

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,

93

e.g., through imparting skills in negotiating for safe sex. Counselling on family

planning should also be available, if national legislation so provides. It is possible that

the woman discovers her pregnancy only after incarceration. For such women, there

should be no pressure placed to terminate their pregnancies. Women should be able to

care for their young children while in detention regardless of their HIV status.

c) The following should be available in all prisons holding women:

Gynaecological consultations at regular intervals, with particular

attention paid to the diagnosis and treatment of sexually transmitted

diseases;

Family planning and counselling services oriented to women’s 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

are in prison on drug-related convictions .

Women have a considerably greater risk of contracting HIV and Hepatitis C

from sexual activity than men. Women who engage in injecting drug use have

94

a particularly high risk through sharing syringes and needles. They might have

had unprotected sex with their drug partners or have been engaged in sex

work. Women’s cultural and societal conditions might be such that they are

not in a position to control their own sexual lives (Bastick and Townhead

2008; Reyes, 2000; UNODC, 2009; World Health Organization, 1993).

Women prisoners have important mental health and drug treatment needs.

Studies have shown that the beneficial effects of treatment components

oriented toward women’s health needs in prison sustain even after 12 months

after release. The majority of offences for which women are imprisoned are

non-violent such as property, dowry-harassment, drug-related offences,

prostitution, bar dancing and so forth (Kumari, 2009; UNODC, 2009). Many

women serve a short sentence, which means that the turnover rate is high.

Specific mental health problems among women in prison: International

perspective

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

95

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

disorders compared to 12% of women in the general population (Covington,

2007). In England and Wales, it was noted that 90% of the women prisoners

have a diagnosable mental disorder, substance use or both. Nine out of ten had

at least one of the following: neurosis, psychosis, personality disorder, PTSD,

self harm, alcohol abuse and drug dependence. Prevalence rate of current

serious mental illness for male inmates was 14.5% and for female inmates it

was 31.0%. Women were 14 times more likely to harm themselves than men

and also repeat such self harm.

Recognising that the public health importance of prison health is neglected,

the World Health Organization (WHO) Regional Office for Europe

established the Health in Prisons Project (HIPP) in 1995 (World Health

Organisation, 1995). This continuously expanding network of 38 Member

States in Europe is committed to reducing the public health hazards associated

with prisons along with protecting and promoting health in prisons. Published

reports of the HIPP during recent years, including the widely used WHO guide

to the essentials in prison health in 2007 and the Trencin Statement on Prisons

and Mental Health in 2008 (World Health Organization, 2008), have

combined the latest research and analysis from experts throughout the world

and have clearly raised the profile of prison health issues.

5.6 NATIONAL SCENARIO:

96

In spite of several legislations and committees, the condition of jails is

deplorable. Though the hard fact is known to the administration, nothing is

done to address these issues. A prison officer listed the various issues relating

to women inmates which are: (i) Admission (ii) Classification (iii)

Reformation Programme (iv) Vocational Training (v) Health and Hygiene (vi)

Psychological or emotional issues (vii) Visitors and emergency leave (viii)

Rehabilitation on release (ix) Resocialisation and acceptance. Women

prisoners on admission are in a mentally disturbed condition. He has also

highlighted the fact that nearly 60% of inmates suffer from various issues of

mental health like psychosis, major depression and personality disorder.

Imprisonment of a mother with dependent child/children is a problematic issue

and it needs to be addressed immediately (Pandy and Singh, 2006). The

effects of incarceration can be particularly catastrophic on the children and

costly to the state in terms of providing for their care, and because of the social

problems arising from early separation (Pandit Govind Ballabh Pant

Institute of Studies in Rural Development, 2004). The shocking survey on

children of women prisoners, conducted by the National Institute of

Criminology and Forensic Sciences, Delhi, during 1997-2000, documents the

conditions of deprivation and criminality in which they are forced to grow up,

lack of proper nutrition, inadequate medical care, and little opportunity for

education. Indian Council of Legal Aid and Advice also filed public interest

litigation in the Supreme Court, asking that state governments to formulate

proper guidelines for the protection and welfare of children of women

prisoners (Upadhyay Vs State of A.P., 2006). The jail authorities said that

97

they were doing what they could within their limited resources to give children

the best possible facilities.

The majority of women offenders convicted for homicidal activities were

poorly adjusted to the family settings. In many cases, their offence directly

stemmed from their husband and in-law’s cruelty, rejection and humiliation.

Husband’s illicit affairs with other women, alcohol and substance use,

domestic violence contributed significantly in motivating married women to

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

prisoner, illness or death of a family member and imminent release).

Protection and promotion of women prisoners’ health requires

multidimensional approach starting from political will, empowerment policy,

police and prison reforms, therapeutic approach of rehabilitation and social

reforms (Kumari, 2009; Maniyar, 2004; Mishra, 2002).

98

5.7 JUDICIAL CONTRIBUTION

Unfortunately, the largest democratic country in the world has a ‘very poor

political will’ to improve the conditions of the women prisoners and children of the

prisoners. Laudable and commendable work regarding women prisoners has been

initiated by the Indian judiciary. In response to a public interest litigation, the

Supreme Court has formulated guidelines regarding pregnancy, antenatal, child-birth

and post-natal care and child care (Upadhyay Vs State of A.P., 2006). The Apex

court has clearly stated the following:

Regarding Gynaecological examination

Gynaecological examination of female prisoners shall be performed in the

District Government Hospital. Proper pre-natal and post-natal care shall be provided

to the prisoner as per medical advice.

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

99

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.

Regarding Child birth in prison

a. As far as possible and provided she has a suitable option, arrangements for

temporary release/parole (or suspended sentence in case of minor and casual offender)

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.

Regarding child care

a. Female prisoners shall be allowed to keep their children with them in jail till

they attain the age of six years.

b. After six years, the child shall be handed over to a suitable surrogate as per

the wishes of the female prisoner.

c. Expenses of food, clothing, medical care and shelter shall be borne by the

respective state.

100

d. There shall be a crèche and a nursery attached to the prison for women

where the children of women prisoners will be looked after. Children below three

years of age shall be allowed in the crèche and those between three and six years shall

be looked after in the nursery. The prison authorities shall preferably run the said

crèche and nursery outside the prison premises.

e. A dietary scale prepared by the National Institute of Nutrition, Council of Medical

Research, Hyderabad , for a balanced diet for infants and children up to the age of six.

f. Jail manual and/or other relevant rules, regulations, instructions etc. shall be

suitably amended within three months so as to comply with the above directions.

Specific mental health problems and needs

There are hardly any systematic studies regarding the mental health problems

of women in prison. A study conducted by Murthy and her colleagues in 1988 is the

first of its kind in India. Collaborators of the study were the National Institute of

Mental Health and Neuro Science (NIMHANS), Bangalore and the National

Commission for Women (NCW), New Delhi. The objective of the study was to

organise training and The directive principles of state policy articulated in the

judgement (Upadhyay Vs State of A.P., 2006).

Article 39(f) - State to ensure that children are given opportunities and

facilities to develop in a healthy manner and in conditions of freedom and dignity, and

that childhood and youth are protected against exploitation and moral and material

abandonment.

Article 42 - Provisions for just and humane conditions of work, and maternity

beliefs.

101

Article 45 – Provision for free and compulsory education for children up to

the age of 14.

Article 47- Duty of the State to raise the level of nutrition and the standard of

living and to improve public health.

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

female guards in charge of the female prison premises.

Health check-up: Women prisoners must be routinely screened for physical

and mental health problems and provided treatment at the earliest.

Peer support group: Self-help groups among women prisoners can be of

great help during stressful situations – Entry into prison, during bail,

102

preparation for court appearances, unpleasant events at home like death of a

family member, before, during and after judgement.

Mental health and counselling: Considering the mental health morbidity in

women prisoners, mental health services and counselling needs to be provided.

Effective planning for mental health care after release is vital, particularly for

women with severe mental illness.

De-addiction facility: De-addiction facility should be made available to

women with substance use problems.

Family counselling: Involvement of family members in counselling is an

essential component to good health of women prisoners.

Vocational Rehabilitation: Adequate opportunities must be provided to work

and keep them busy. Adequate planning for livelihood after release,

particularly for women without family support is extremely important.

Behavioural rehabilitation: High-risk behaviors such as aggression,

violence, self- injurious behavior, impulsivity, sexual behavior and substance

use need to be addressed with appropriate techniques.

Suicide prevention strategies: Frequent meetings with prisoners will help in

prompt identification of their problems, generation of solutions and reduction

in distress. Prison staff requires training on how to identify mentally illness

and use crisis intervention techniques.

Adequate planning: Before release, safeguards against prison re-entry,

halfway home support systems for women without family support, and

treatment continuation after release are critical components of effective

treatment. Life skills training and encouraging further education in prison and

health education also play a crucial role in empowering women and preventing

103

recidivism and poor mental health outcomes. The circumstance of being

within four walls of a prison is upsetting enough. It is important that mental

health of women prisoners is preserved and enhanced, so that the prison

experience will not scar their lives.

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

104

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

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

105

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

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

106

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

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

CONCLUSION & SUGGESTION

The present study reveals that separate women prisons are essential to keep the

women prisoners. The number of women prisons is not sufficient in India and it

should be increased. Women prisoners being women have special requirements which

should be necessarily fulfilled. The number of undertrial prisoners should be reduced

to the maximum extent to reduce the burden over jails. Prisons should be converted

into correctional homes. It is essential for the women prisoners for their reformation

and rehabilitation. To fulfil this purpose it is compulsory that they should be provided

basic facilities in the prison. There is need of special training programme for the

prison officials so that their behave towards the women prisoners can be changed and

they can give importance to the basic human rights of the women prisoners. In the

case of pregnant women prisoners they can be granted bail and in case the children

are dependent on the women prisoners, their mercy application should be considered

sympathetically and released accordingly. Most of the women prisoners are not aware

about the complexity of judicial process. Legal awareness programmes should be

launched on war footing in the jails so that women prisoners should be made aware of

their legal rights and about the complexity of judicial process. Sufficient lady doctors

should be appointed in the prisons. Mulla Committee had recommended the

appointment of full time lady medical officer in case women prison contains 25 or

more women prisoners and in case of fewer women prisoners lady medical officer

should be appointed on part time basis. The efforts should be made on war footing to

reduce the strength of women undertrial prisoners and for this purpose the procedure

of plea bargaining can be adopted. LokAdalats should be organised frequently. Fast

track courts should be established to reduce the burden of undertrial prisoners over

jails. The Prison Act 1894 which regulates the prison administration is too old and it

108

requires to be substantially amended in the present scenario. Panels of visitors should

be appointed on a permanent basis to all prisons as recommended and emphasised by

National Expert Committee on women prisoners and apex court in various

observations. Succinctly, it can be said that the goal or aim behind awarding the

punishment to the women offenders should be the reformation and the rehabilitation

of women prisoners and for achieving this goal the jail manuals should be prepared in

consideration with minimum standard of human rights.

109

BIBLIOGRAPHY

http://www.droptherock.org

http://www.therapeuticresources.com/index.htm

women/prisons-and-social-control.html

http://www.ahrchk.net/ua/index.php

Case Study: Tihar, Delhi

<http://www.pucl.org/from-archives/81nov/tihar.htm>

Case Study: Arrah, Bihar

<http://www.pucl.org/from-archives/81nov/arrah.htm>

Case Study: Sakchi, Jamshedpur

http://www.pucl.org/from-archives/81nov/sakchi.htm>

Case Study: Uttar

pradesh,<http://www.pucl.org/from-archives/81nov/arrah.htm>

110