Right of women in Prison

Introduction

“Human rights are intrinsic to every person, though the person is prisoner...”

The term “prison” is dedicated to define a place for the persons who have committed crime. The
purpose of prison is not to punish the prisoners, but to provide them a facility to correct
themselves in order to live a life of an ordinary man in society after releasing from prison. The
term prison has always been used to define as “confinement”. In general, it is a confinement
only, but in depth the prison has adopted various facilities for prisoners to protect their rights.
The term prisoner is for both men and women. Therefore, even women prisoners live in prison.

It is pertinent to note that crimes are being committed by women also, but the number of women
prisoners is very less if compare with male prisoners. In the present scenario, equality is trend
which requires equal treatment to both. Women in prison though are less in number, but there is
a need of proper prison facilities to women in consonance with their rights. Rights of women
have been widely recognized from international instruments to even constitution of country. It is
highly relevant to analyze in depth the rights available to women in prison because of various
difficulties have been faced by women in prison despite of being less in number. There are
statutory provisions dealing with the rights of women prisoners. There is a need of reform in the
present condition of prison to provide adequate facilities to women to live their life with dignity
and liberty. The need of women in prison is different from that of men considering the gender
related facilities for health care such as to provide pre natal and post natal care to pregnant
women, to provide adequate facilities for minor children of women. A special status has been
granted to women even under the constitution of India 1, therefore there is need to ensure the
adoption of adequate standards in prison to preserve the special status of women.

1
INDIAN CONST. art 15(3).
Women in Prison: Analysis

Only small proportion of prisoners constitutes women prisoners. According to the data of
National Crime Records Bureau, 2017 there were approximately 18,873women prisoners in
the prison out of 4 50,696 prisoners. It clearly shows that merely 4 % of prisoners constitute
women prisoners.2 It is relevant to note that women prisoners are less in number which is the
main cause of not providing adequate facilities to them. Out of 1,361 prisons, only 22 prisons are
women prisons. Majority of women prisoners are under trial for the offence of murder and dowry
deaths. For the purpose of regulating the conditions of prison, various commissions and
committees have been constituted from time to time.

In 1983, a committee under the chairmanship of Justice A. N. Mulla submitted its report and
gave recommendations regarding the facilities to be provided in prison for prisoners which
focused on the need of separate prison for women with women staff. 3 Further, in 1987 the
National Expert committee on women prisoners was constituted with Justice Krishna Iyer as
chairman. This committee specially focused on the position of women in prison and need of
further reform. In pursuance to that, this committee recommended to inform women prisoners
about their rights, to authorize women constables to conduct search on women prisoners, to
allow the women prisoners to keep in touch with family members, lawyers and others, to allow
the women prisoners to keep their children with them and lastly to arrange separate prison for
women.

In 1997, Rama Murthy v. State of Karnataka 4, the Hon’ble Supreme court addressed the issues in
the prison system and directed the government to constitute a committee for the preparation of
Model prison manual. The Model Prison Manual was prepared to look into the difficulties faced
by prisoners. Further, the revised and updated Model prison manual was prepared in 2016 which
recognizes rights of prisoners. The main purpose of all the committees was only to ensure the
effective administration of prison by protecting the rights of women prisoners according to their
needs.

2
Prison Statistics India 2017, NCRB, Available at: https://ncrb.gov.in/sites/default/files/PSI-2017.pdf.
3
Prison Reforms, MINISTRY OF HOME AFFAIRS GOVERNMENT OF INDIA, Available at:
https://www.mha.gov.in/MHA1/PrisonReforms/report.html
4
Rama Murthy v. State of Karnataka, AIR 1997 SC 1739
Rights of women in prison: International Perspective

Human rights are recognized even internationally by various treaties, convention which requires
the member countries to provide adequate standard of life to the citizens. Universal declaration
of Human Rights (UDHR) is the basic international instrument which recognizes the Human
rights of all irrespective of the fact that the person is imprisoned. Article 25(1) of The Universal
Declaration of Human Rights declares that, “Everyone is entitled to the right to a standard of
living adequate for the health and well being of himself and of his family, including food,
clothing, and housing and medical care and necessary social services.” This Article lays down a
human right for all including the person in prison. Therefore, Women in prison also entitle for
the same standard of living as other enjoys.

Further, the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) was adopted by the United Nations General Assembly in 1979. Article 3 lays down
general principle by requring state parties to ensure the advancement of women by providing
basic human rights. It implies that CEDAW make it obligatory for all member countries to
guarantee such human rights to women which are fundamental to their survival. 5 For the purpose
ensuring adequate treatment with human, In 1987 The United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) was
adopted. This Convention is to prohibit torture and other acts of cruel, inhuman, or degrading
treatment with human. This convention is the basic international treaty against cruel treatment
with human. This is a Human right to get protection against such treatment.

It is pertinent to note that in the year 2015, United Nation general assembly adopted United
Nations Standard Minimum Rules for the Treatment of Prisoners commonly known as the
Mandela Rules. Such Rules set out the standard to be followed in country while treating the
prisoner. These rules are gender neutral, applies to both. The general principle requires the
separate institution for prisoners for separate categories of prisoners. These Rules recognizes all

5
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Available at:
https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm
the aspects of prison such as Accommodation, Personal hygiene, food, clothing and Medical
services.6

Rights of women in prison

Indian Constitution guarantees fundamental rights to all the citizens. Article 21 of the
Constitution of India provides for the right to life and personal liberty. The scope of this Article
is too wide as it encompasses all kinds of freedoms essential for living a dignified life. From time
to time, different aspects have been added to this Article. The protection of right to life and
personal liberty has been extended to include the rights of prisoners. It is established that the
personal liberty of prisoners are secured under Article 21 and can only be taken away by
procedure established by law.7 Therefore, the Indian constitution widely protects the rights of
prisoners including women.

Further, there are legislations such as The Prison Act, 1954 and code of criminal procedure, 1973
which emphasizes on the rights of prisoners. There are no exhaustive list of rights of women
prisoners, but various committees, guidelines and even prison manuals recognize some rights
which are stated below-

 Separate Institution for women prisoners

There must be separate Institution for female inmates. It has been observed by Punjab and
Haryana High court that there must be separate accommodation for women prisoners as it is their
matter of right.8

 Search and Examination by Matron

Section 24(3) of The Prison Act, 1894 deals with the examination and search of female
prisoners. This provision entitles them to be examined by Matron either by general or special
order of Medical officer.9

 Food and Accommodation

6
UNITED NATION STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS, Available at:
https://www.unodc.org/pdf/criminal_justice/UN_StandardMinimum_Rules_for_the_Treatment_of_Prisoners.pdf
7
"Sunil Batra V. Delhi Administration, (1978) 4 SCC 409
8
H.C. Arora vs. State of Punjab and others, C.W.P. No. 8108 of 2006.
9
The Prison Act, 1894 § 24(3).
It is the human right that there must be adequate facilities for providing healthy food as well as
accommodation to the prisoners. Even, civil prisoners and unconvicted criminal prisoners are
entitled to maintain themselves and to get food, clothing and other necessaries.10 Other than this,
it is required by law to supply food, clothing and other basic necessaries to women prisoners by
keeping in mind their needs.11 As per the Indian Prison manual, women prisoners must get
adequate living conditions.

 Health Care

Right to Health is an integral aspect of meaningful right to life enshrined under Article 21 of the
Indian Constitution.12 Similarly, prisoners have right to Medical care. In case of women
prisoners, they have right to medical care and examination. Where a woman prisoner is pregnant,
then she has various rights such as pre natal and post natal care facilities, Nutritious and healthy
diet. Women have right to regular check up after giving birth to child. According to prison
manual, pregnant woman is entitled to all the required medical care. Supreme Court has observed
that basic facilities must be given to pregnant inmates and there must be arrangement for
delivery outside the prison.13

 Right of children living in prison with their mothers

As per the Indian Jail Manual, all the Female prisoners are entitled to keep their children with
them in Jail till they attain the age of six years. Children in prison must get adequate health care
facilities, nutritious diet and other child care facilities which other children get. Further, the
Model Prison Manual also provides for the crèche and nursery school facilities for the children in
prison. In RD Upadhyay v. State of Andhra Pradesh and others 14, Supreme Court of India
highlighted the rights of children of women prisoners and directed the prison authorities to
ensure food, shelter, medical care, clothing, education and recreational facilities as a matter of
right for the children.

 Legal Aid and Counselling

10
The Prison Act, 1894 § 31.
11
The Prison Act, 1894 § 33.
12
Consumer Education and Research Centre And Others v. Union of India and Others, (1995) 3 SCC 42.
13
RD Upadhyay v. State of Andhra Pradesh and others (1999) 4 SCC 437.
14
RD Upadhyay v. State of Andhra Pradesh and others (1999) 4 SCC 437.
Indian Constitution deals with the right to free legal Aid of needy people under Article 39A of
the Indian Constitution. This provision emphasizes on providing the legal aid to female inmates
to secure justice irrespective of their economic conditions. 15 Further, the Prison Manual
highlights the need of establishing Socio-legal counselling cell in each institution to be managed
by volunteers from a designated non-governmental voluntary agency. They are entitled to choose
counselor of their choice.16

 Meeting with Relatives

One of the basic rights of the female prisoners is to be permitted to meet with their relatives and
friends. There must be separate room for such meetings in each prison for both male and female
prisoners as per the prison manual.

Issues faced by women prisoners

Though various active steps have been initiated by judiciary and committees from time to time to
recognize the rights of women prisoners, yet women inmates have to face various difficulties in
prison. Some of the issues are stated below-

 Prison Staff

It has been observed that there is a huge shortage of staff in almost every jail of the country.
Further, there is a scarcity of supervisory level female officers in prison.

 Overcrowding

Overcrowding is one of the important factors which have widespread implication on the basic
human rights of women prisoners. Increasing number of under trial prisoners lead to the problem
of overcrowding. Overcrowding is the major problem faced by female prisoners. It is pertinent to
note that there is not even adequate space for sleeping for women inmates according to Bureau of
Police Research and Development.17

15
INDIAN CONST. art 39A.
16
Code of Criminal Procedure,1973 § 303.
17
Report no. 260, Available at:
http://www.bprd.nic.in/WriteReadData/userfiles/file/201707110435168799390NationalPoliceResearchRepository.p
df.
  Sanitation & Hygiene

There are many prisons in India which are lacking in basic facilities of sanitation and hygiene. In
prisons, there are very less number of toilet and bathrooms. Women prisoners have to face
difficulty as even there is no safe entrance for the women toilets. Further, proper sanitation
facilities are not in accordance with the need of women.

 Poor Medical facilities

Health covers various aspects as to mental, physical, sexual and reproductive health. There is
lack of adequate facilities for examination and screening tests of women. 18 Further, there are
female inmates who face mental health issue which lead them to commit suicide.

 Violence

Other than general facilities, women prisoners have to face violence or sexual abuse. At the same
time, there is a social stigma attached to women's imprisonment than men's. Violence including
cruel treatment has a far reaching impact on the human rights of women prisoners. Even, there
are no arrangements for dealing with complaints regarding violence.19

Need for reform

Though Women prisoners are in minority in the prison, yet there is a need of vast improvement
in prison for the protection of their rights. Following are the steps must be taken to ensure the
protection of Human rights of women in Prison.

 There must be National policy regarding pre trial process, arrest of women, trial process,
legal Aid facilities and other recreational facilities to bring uniformity in the
Administration of prison system.
 There must be adoption of uniform Prison manual in states and the basic facilities for
women and their children must be clearly mentioned.
 There must be construction of new prisons and modernisation of existing prisons to
address all the issues faced by prisoners.
18
Prison Statistics India 2015, NCRB, Available at: https://ncrb.gov.in/sites/default/files/PSI-2015-%2018-11-
2016_0.pdf.
19
Dilip K. Basu v. State of West Bengal, 1997 1 SCC 416.
  There must be proper arrangements of drinking, food and other amenities for female
prisoners and their children.
 Fair, speedy and effective trial is required to secure justice for prisoners.
 Effective measures must be adopted to ensure the presence of female staff, female
doctors in the prison.
 Education also play vital role, thus Literacy campaign must be initiated in every prison.
 There is a need of Amendment in the legislations such as Prison Act, 1894, IPC, Cr.P.C.
and police Act, 1861 to highlight the need of women inmates.20

Conclusion

From the above study, it can be concluded that though Indian Constitution has granted special
status to women, yet the women inmates have to face difficulties in existing prison system. There
are even International Instruments and conventions recognize the basic human rights for
prisoners. In India, rights of female inmates play pivotal role. It has been observed by various
studies that the condition of women prisoners is worst and there is a vast scope for improvement
in the existing prison system. Female inmates have to face various issues related to basic
hygienic living conditions. The main issue is overcrowding in prison, which must be addressed.
The main purpose of prison is for the reformation of prisoners, not to punish them. Thus, it is
essential to protect the basic rights of prisoners. There must be proper rules, guidelines and laws
to contain such provisions as to protect the women from cruel treatment. The issue of female
criminality can be addressed by improving conditions of women within prison and by providing
better support on their release.

A Study of condition of Women Prisoners & Their Children, Available at:

20

http://ncwapps.nic.in/pdfReports/A_Study_of_condition_of_Women_Prisoners_and_Their_Children_in_Eastern_U
P_Jails.pdf.
References-

Websites:-

 www.scconline.com

 www.indiankanoon.org

 www.researchgate.com

 www.academia.edu

 www.unodc.org

 www.jstor.com

Legislations:-

 Prisons Act,1894

 Prison Manual,2016

 Code of criminal Procedure, 1973