ABSTRACT

Indian constitution under Article 21 and 22

protects and safeguards the rights of convicts,
under trials and offenders. The present analysis
tries to find out different types of safeguards
guaranteed to the prisoners along with a special
attempt to search for the particular safeguards
for the women offenders.

Submitted by: Roonam

Class Roll No:1951 LL.M First Semester
Indian Prisoners’ Rights with Special
Reference to Rights of women Prisoners
Submitted To: Dr Abhishek Negi (Asst Professor),
Department of Laws, HPU Shimla-5
Contents
1. Abstract
2. Introduction
3. Historical Aspect
4. Rights given to the Prisoners under Constitution and related Case Laws
I) Convict’s rights
II) Prisoners’ Rights
III) Rights against inhuman torture and custodial deaths
IV) Detention in civil prison
V) Rights against solitary confinement
VI) Rights against arbitrary arrest and detention (Art. 22)
5. No Sufficient Women Jails in Country
6. Overcrowded Jails.
7. Inadequate Basic Facilities
8. Poor Medical Facility
9. Safety of Female Prisoners
10. Case Study
11. Death of Women Prisoners
12. Rules governing women in prison
13. National Model Prison Manual
14. Pregnancy and Child birth in prison
15. Living arrangements
16. Improvement of health and nutrition
17. Addressing violence
18. Formulation and adoption of National Policy on Custodial Justice to Women.
19. Conclusive Remarks
20. Bibliography
ABSTRACT

Indian constitution under Article 21 and 22 protects and safeguards the rights of convicts,
under trials and offenders. The present analysis tries to find out different types of safeguards
guaranteed to the prisoners along with a special attempt to search for the particular
safeguards for the women offenders. In this study an attempt is made to bring out the
various facets of right to life in the arena of prison rights guaranteed to the convicts. This
presentation specifically deals with the conditions of such Indian women who have been put
behind the bars and have to suffer every day for their day to day needs because the
government and the authorities could not maintain a proper standard of living inside the
jails for such women as promised and suggestions to improve the situation.

Introduction
A “prisoner” is a person who is deprived of his personal liberty, due to the conviction of a
crime, and imprisonment is the most common method of punishment provided by all legal
systems. Imprisonment makes the prisoner repent about his past conduct. In the
constitution of India, there is no specific guarantee of prisoner’s rights; but there are certain
rights given under part- III of the constitution. There are statues in the constitution which
provide certain rights of the prisoners as enforced, like prisoners act,1900, prisoners act,
1955, prison act, 1894 etc. There are also prison and police manuals, which have certain
rules and safeguards for the prisoners, and it is an obligation on the prison authorities to
follow these rules. Indian constitution under Article 21 and 22 protects and safeguards the
rights of convicts, under trials and offenders.
Other than the basic human needs, which have now been included in the arena of right to life
under the Indian constitution due to the brilliant humanistic judgments of the Supreme
Court, right to life also enables a person to avail the guarantee of protection in cases of
criminal justice administration. The said humanistic approach has not stopped to the basic
necessities of life like right to live with dignity, right to education, health, labour
welfare etc, but it has also highlighted the other essential rights to live a dignified human
life. The right to life includes the right to justice which includes fair trial. The human rights
afforded to an individual are not a favour done to him but a matter of norm accepted in
a civil society1. Under our constitution deprivation of personal liberty as penal policy is
purposive because the imprisonment of criminal as sanctioned is a measure of social
defense and individual rehabilitation. The focus of interesting penology is the individual
and the goal is salvaging him for society. 2

1. Verma, J.S. (2000). Penal Reform in South Asia, Key Note Address at the Regional
Conference on Penal and Prison Reform and Access to Justice in South Asia,
Katmandu, Nepal.
2. Sirohi, JPS. (2004). Criminology and Penology. Allahabad: Central Law Agency.
Historical Aspect

There has been a long history of women indulging in all kind of crimes similar to their male
counterparts from simple assault to theft, cheating, forgery, property crimes, robbery,
extortion, drug-related offenses, human trafficking, and even homicide. But, the study and
research about female criminality in India have always been given a cold-shoulder response
by the academicians, scholars and the Governments.

One of the prominent reasons behind such a massive neglect, in our opinion, is the fact that
the number of female criminals, in comparison to their male counterparts, have always
been significantly minimized. The other reason behind this neglect is that the female
criminality has not been that threatening in the society as that of the male criminality. The
comparative history of male and female criminality suggests that male criminality
profoundly destabilizes the order of law and immensely affects the societal peace and
tranquillity whereas female criminality visibly poses less danger to the society in comparison
to the male offenders.

The study of women who commit crime has a long history, stretching back to the 1800s with
the work of Cesare Lombroso and other biologists who sought to explain crime from a
biological point of view, often borrowing heavily from Darwinian evolutionary perspectives
to explain the supposed lack of evolutionary development shown by criminals and all
women, especially criminal women3.  

Rights given to the Prisoners under constitution and related Case Laws:

Art 21 and Art 22 of the Indian constitution indicate six types of rights guaranteed to
the prisoners as a whole. These are briefly discussed below:
1. Convict’s rights
In D. Bhuvan Mohan Patnaik v. State of AP4 It has been held that even convicts are
entitled to the precious right guaranteed by Article 21. They shall not be deprived of
life and personal liberty except according to the procedure established by law. The
Government cannot resort to oppressive measures to curb the political beliefs of a convict.
However, they have no fundamental right to escape from lawful custody. Hence,
posting of police guards outside jails and installation of high voltage live-wire on jail
walls are not violative of Article 21.

3.  Vickie Jensen and Kristyan M. Kouri in their seminal work titled ‘Women Criminals: an encyclopedia of people and issues, Vol. I
4. AIR 1974 SC 2092
2. Prisoners Rights
A Prisoner is also entitled to invoke Article 21. The matters came up before the Supreme
Court recently in Sunil Batra v. Delhi Administration. 5 This case originated, in a letter by
a prisoner, Batra, to a judge of the Supreme Court complaining of a brutal assault
(insertion of a stick in to the anus resulting in tears of anus and bleeding) by a Head Warder on
another prisoner Prem Chand who was undergoing a life sentence. Batra was not afraid of
the consequences of jail indignation and brought the incident to the knowledge of the
Court, resulting in these proceedings which, though not strictly traditional, were clearly
in the nature of habeas corpus writ and, therefore, within the wider sweep of Article
21.
It was observed that a substantial number of the prisoners are under-trials 6 who have to
face their cases in court and are presumably innocent until convicted. How cruel it would
be, when one goes to a hospital for a check-up and by being kept along with contagious
cases comes home with a few diseases. Prison reform is now a constitutional compulsion
and its neglect may lead to drastic court action.
To clinch the issue, the Supreme Court issued as many as six directions (Mandates) to
the States and Prison Staff, and ultimately held as follows:
“The prisoner’s rights shall be protected by the Court by its writ Jurisdiction plus
contempt
Power
. To make this jurisdiction viable, free legal services to the prisoner programmes
shall be prompted by professional organizations recognized by the Court such as Free Legal Aid
(Supreme Court) society. The District Bar shall, we recommend, keep a cell for prisoner
relief”.7

3. Rights against inhuman torture and custodial deaths

8
In the landmark judgment D.K. Basu v. State of West Bengal , the Supreme Court held that
custodial torture is a naked violation of human rights, dignity and degradation, which
destroys, to a very large extent the individual personality. It is a calculated assault on
human dignity and whenever human dignity is wounded, civilization takes a step backward-
flag of humility much must on such occasions fly half-mast. In this respect, the Supreme
Court further observed that the police with their wide powers are apt to use strong arm
against

5. AIR 1980 SC 1579

6. Ibid. P. 1063
7. JT 1997 (1) SC 1
8. 1997 SCC 610
those who happen to fall under their secluded jurisdiction. That tendency and the
temptation must in the larger interest of justice be nipped in the bud. Human dignity is a
clear value of our constitution not to be bartered away for mere apprehension
entertained by jail officials, declared Justice Krishna Iyer.

Similarly, torture and ill treatment of women suspects in police lock ups has been held
to be violative of Article 21 of the Constitution. The court gave detailed instruction to
the concerned authorities for providing security and safety in police lock up and
particularly to women suspects. Female suspects should be kept in separate police lock
ups and not in the same in which male accused are detained and should be guarded by
female constables. The Court directed the Inspector General of Prisons and State Board of Legal
Aid Advice Committee to provide legal assistance to the poor and indigent accused (male and
female) whether they are under trial or convicted prisoners.
The courts have recently viewed third degree methods and custodial deaths in police
custody as a serious violation of human rights and constitutional provisions of right to
life and liberty. 9
In the case of Smt. Nilabati Behara v. State of Orissa 10 the Supreme Court held the
liability of custodial deaths and held that compensations for contravention of human
rights and fundamental rights guaranteed in the constitution, is an acknowledged
remedy for protection of such rights, and directed the State to pay Rs. 1.5 lakh
compensation to the petitioner for custodial death of his son aged 22 years.
The right to protection against torture, which is enunciated in Article 5 of the Universal
Declaration 11 and guaranteed by Article 7 of the International Covenant on Civil and
Political Rights (1976), has been read into the Constitution by the Supreme Court and various
High courts. The Government of India has signed the UN Convention against torture and other
cruel, inhuman or degrading punishment (1987)12 on the recommendation of the National
Human Rights Commission. The Indian legislation has also prohibited the use of custodial violence in
unmistakable terms. Under sections 330 and 331 of the Indian Penal Code (IPC), 1860, it is
an offence to voluntary cause hurt or grievous hurt to extort confession or to compel
restoration of property. The punishment is also very severe. In case an offence
committed under section 330, IPC. It is either description for a term which may extend
to seven years and also fine. In case offence is committed is covered under section 331,
IPC. The imprisonment is up to ten years Rigorous Imprisonment and fine.

The Code of Criminal Procedure, 1973 has empowered the Magistrate to enquire into the
matter where any person dies while in police custody. Section 176 of the Code is
relevant.
9. Ibid.
10. 1993 2SCC 746
11. Universal Declaration of Human Rights The international Covenant on Civil and Political rights in a United Nations Treaty,
March 1976.
12. UNCAT came into force in June 1987 and to date 141 nations are party to it.
4. Detention in civil prison
This question came up before the Supreme Court in Jolly George Varghese v. The Bank of
Cochin13, whether the arrest and detention in prison was violative of Article 11 of the
International Covenant of Civil and Political Rights and Article 21 of the Constitution? It
was held as under:
Equally meaningful is the import of Article 21 of the Constitution in the context of
imprisonment for non-payment of debts. The high value of human dignity, and the
worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates
the State not to incarcerate except under law which is fair, just and reasonable in its
procedural essence.
Maneka Gandhi’s case 14, Sita Ram v. State of UP 15 and Sunil Batra v. Delhi
Administration, decided lays down the proposition. It is too obvious to need elaboration
that to cast a person in prison because of his poverty and consequent inability to meet
his contractual liability is appalling. To be poor, in this land of Daridra Narayana (land of
poverty) is no crime and to recover debts by the procedure of putting one in prison is too
flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful
failure to pay in spite of his sufficient means and absence of more terribly pressing
claims on his means such as medical bills to treat cancer or other grave illness.

5. Rights against solitary confinement

In Sunil Batra (No.1) v. Delhi Administration, the important question raised before the
Supreme Court was whether solitary confinement imposed upon prisoners who were under
sentence of death was violative of Articles 14, 19, 20 and 21 of the Constitution. In this
case, the two convicts who were confined in Tihar Central Jail filed two petitions under
Article 31, challenging the validity of section 30 and section 56 of the Prisons Act. Sunil
Batra,
An accused, was sentenced to death by the District and Sessions Judge and his sentence
were subject to the confirmation by the High Court and to a possible appeal to the
Supreme Court. Batra complained that since the date of his conviction by Session
Judge that was 6 July, 1976 he was kept in solitary confinement till the Supreme
Court intervened on 24 February, 1978.
6. Rights against arbitrary arrest and detention (Art. 22)
Art 22 guaranteed four basic rights to the persons who are arrested under an ordinary law.
These are:
1. The right to be informed as soon as may be of the grounds of arrest;
2. The right to consult and to be represented by a lawyer of his own choice;
3. The right to be produced before a magistrate within 24 hours;
4. The freedom from detention beyond the said period except by the order of the
magistrate.

13. AIR 1980 SC 470

14. (1978) 1 SCC 494
15. (1979) 2 SCR 1085
The protection of these fundamental rights in case of female prisoners become an issue of
vital importance because female prisoners more than their male counterparts are
prisoners of their own sex with special problems not faced by men because of their
inherent biological differences.

No Sufficient Women Jails in Country:

21 States and UTs Have No Women Jails at All.16Another staggering stats revealed by NCRB
was that 21 States and UTs in India have no women jails at all. So, for these areas, women
are put into regular jails, owing to the non-availability of women-only jails.

Only 15 States and UTs having women jails with a total capacity of 5593 in India. The
following is the exact number with inmates:

1. Tamil Nadu(5) 2018

2. Kerala (3) 232

3. Bihar (2) 152

4. Rajasthan (2) 450

5. Delhi (2) 648

6. Andhra Pradesh(1) 160

7. Gujrat (1) 210

8. Karnataka (1) 100

9. Maharashtra (1) 262

10. Odisha (1) 55

11. Punjab (1) 320

12. Telangana (1) 250

13. Uttar Pradesh (1) 420

14. West Bengal (1) 226

15. Mizoram (1) 290

This is not the first time that the pitiful condition of women prisoners has come to light. In
August 2019, women inmates of Tihar Jail at Barrack Number 6 complained of hearing
women inmates screaming in the night. Some of the inmates have even reported that they
have seen a glimpse of a woman wailing mysteriously.17

Overcrowded Jails:
According to the recently released data by the National Crime Records Bureau, overcrowding in
prisons is the most common problem among the prison inmates. The data also shows that
Chhattisgarh accounts for the most densely packed women inmates in prison. As per the NCRB 2017
data, there’s a staggering 166.4 percent occupancy rate for women in Chhattisgarh prisons. This
means that in a space meant for 100 women, 166.4 women on an average are being confined. 18
16. NCRB, Prison Statistics India, 2018
17. Hindustan Times English Newspaper
18. NCRB, Prison Statistics India, 2017

One can notice excessive violations of women prisoners’ human rights and aggravated
suffering inside the four walls of the prison, because the issue has not been paid the
attention that it deserves. It shows the pathetic attitude of the Governments which have
been blatantly ignoring the specific care and treatments that the female prisoners deserve,
merely because they have been less in percentage.

A study by Commonwealth Human Rights Initiative in July said that about 61,100 inmates or about 15.4 percent of total
prisoners were released from jails in a bid to decongest the jails because of the pandemic. “The overall reduction of 15.4
percent in overall occupancy is not adequate to address the overcrowding of 40 percent of the Indian prisons,” Chakma
said.As Covid-19 started spreading in jails, several state governments took steps, such as mandatory quarantine for new
prisoners in temporary jails, mandatory Covid-19 tests for new inmates and release of those inmates arrested for non-heinous
crimes, to prevent the spread of Covid-19.

Neglect of female criminality and her second citizen status in correctional and social
defence strategies have been chronic in India. Much of this is a reflection of the unequal
status which accrues to women in Indian society. Their freedom has traditionally been
compromised. They are reduced to socio-economic serfdom through the exploitative
manipulations of a feudal system, the onslaught of which continues to pressurize women
in current times.19

Inadequate Basic Facilities:

Most of the Indian prisons have highly unsatisfactory basic facilities. These include poor
toilet facilities, bathing, clothing, breakfast, food, soaps, detergents, sanitary napkins,
sleeping arrangements, regular and emergency medical care, overall unhygienic
environment etc.

According to a study conducted over 150 convicted female prisoners in Jaipur Central Jail,
Rajasthan, the condition of female prisoners in Indian prisons appear to be extremely
disappointing and regrettable.20 

Poor Medical Facility

The medical facilities, like all other basic facilities inside most of the Indian prisons, are in
shabby condition and down at heel. Though, the proper medical care is fundamental to all
including male prisoners, the female prisoners by their congenital biological differences
require special care and attention.  According to a report published in the ‘Times of India’
the conditions of medical care and protection for the female prisoners in two prisons in
Arthur Road and Byculla in Mumbai, Maharashtra, were found to be in an extremely
pathetic state. This report claims:

Medical facilities are pathetic. The female prisoners take care of each other when they feel
ill. One woman had a miscarriage and bled for a few hours before she was taken to the
hospital.A study on the prevalence of HIV in Indian prisons revealed that 1.7% of male and
9.5% of female inmates were HIV positive. 21 This is significantly higher than the national HIV
prevalence of 0.32% in males and 0.22% in females. 22 

19. Indian Journal of Gender Studies, 16:2 (2009), 253–271]

20. [Please see, Press Release of ‘Ministry of Health and Family Welfare dated November 30, 2018]

21. Dolan K, Larney S. HIV in Indian prisons: Risk behaviour, prevalence, prevention, and treatment. Indian J Med Res. 2010;
132:696–700]

22. National Expert Committee on Women Prisoners (1986), constituted by the Government of India

High rates of TB have been reported by Human Rights Watch in India and a study in 2008
had found that 9% of prison deaths were attributed by TB.

In an observation made by Shamina Shafiq, a former member of National Commission for

Women, the incarcerated women frequently faces the problem like no food and water, no
doctor to treat the sick inmates, and no possibility of meeting or speaking to family
members. Rule 26.01 of Model prison manual, 2016 states that ‘only lady doctors shall look
after the medical care of women prisoners during their stay in prison’. However, there is,
hardly sufficient number of female doctors appointed in the prisons, to deal with females
specific health requirements.23

Safety of Female Prisoners:

The new Model Prison Manual, 2016, in one of its chapters specifically dedicated to
‘Women Prisoners’ states at the very outset itself that, “To ensure safety of women
prisoners and guard them against any form of exploitation, it is desirable that at least one
woman’s jail be established in each state.” 24 The suggestions for special prisons for
women prisoners are not new as it has been recommended by several committees
including ‘Jail Reforms Committee, 1980-83’ and ‘National Expert Committee, headed by
Justice Krishna Iyer, 1986-87. The lackadaisical attitude of the Governments towards
properly addressing the issues and concerns of female prisoners can simply be understood
by going through the following case study:

Case Study :

P. Pugalenthi vs The State of Tamil Nadu25

 Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to direct
the respondents to produce the body and person of Ms.Saradha, aged 55,was brought to
Special Prison for Women, Vellore, Tamil Nadu, as a remand prisoner having been
remanded by the Judicial Magistrate. She was undressed totally and dragged nude for quite
some time till they reached the entrance of her cell and was put in solitary confinement and
she was never given back her clothes and no official in the prison bothered about her. She
was awarded 50000/- as compensation by the court

Death of Women Prisoners:

As per Prison Statistics, NCRB India 2015, 51 deaths of female inmates were reported. “A
total of 51 deaths of female inmates were reported during 2014, wherein 46 deaths were
natural and 5 deaths were unnatural during the year 2014. As per Prison Statistics India
2013, “A total of 55 deaths of female inmates were reported during 2013, wherein 48
deaths were natural and 7 deaths were unnatural during the year 2013. Similarly, “A total of
55 deaths of female inmates were reported during 2012, wherein 8 deaths were suicidal in
nature reported during the year 2012, as per Prison Statistics India 2012.

23. Model prison manual, 2016

24. Model prison manual, 2016

25. 17 July, 2009

This is indeed a matter of serious concern for the well-being and security of the female
prisoners if a total number of twenty female prisoners die an unnatural death in three
consecutive years. This indicates that there is essentially a huge lacuna in the security
system of the Indian prisons. These statistics certainly point towards a rotten security
system inside the prisons.

Rules governing women in prison

As per the State List provided in the Seventh Schedule of Indian Constitution, all issues
related to prisons, reformatories, borstal institutions and other institutions of a like nature,
and persons detained therein; arrangements with other States for the use of prisons and
other institutions come under the domain of State Governments. The rules of incarceration
are determined by following laws:

 Indian Penal Code, 1860

 Prison Act, 1894
 Prisoner’s Act, 1900
 Identification of Prisoner’s Act, 1920
 Exchange of Prisoner’s Act, 1948
 Transfer of Prisoner’s Act, 1950
 Prisoner (Attendance in Court) Act, 1955
 Probation of Offenders Act, 1958
 Code of Criminal Procedure, 1973
 Repatriation of Prisoner’s Act, 2003
 Model Prison Manual, 2003
 Model Prison Manual, 2016
A National Policy on Prison Reforms and Correctional Administration had also been framed
in 2007, which gave a number of directives relevant to women prisoners – maintenance of
human rights of prisoners, avoiding overstay of under trials etc. It further states, “Women
prisoners shall be protected against all exploitation. Work and treatment programmes shall
be devised for them in consonance with their special needs.”

National Model Prison Manual, 2016

The key features of the updated Model Prison Manual 2016 include emphasis on prison
computerization, special provisions for women prisoners, focus on after-care services,
prison inspections, rights of prisoners sentenced to death, repatriation of prisoners from
abroad, enhanced focus on prison correctional staff.

Pregnancy and Child birth in prison

In case of pregnant prisoners, the provisions of the National Model Prison Manual must be
followed strictly to make arrangements for temporary release for delivery of children in a
hospital outside the prison. Suspension of sentence may be considered in the case of casual
offenders. Information about a woman’s pregnant status should also be made to the Court
that has ordered the detention, to enable the Court to grant bail (where appropriate) or
modify the detention order as deemed necessary.

The birth certificate of the child born to a woman in prison should never mention the prison
as place of birth to protect them against social stigma.

Pregnant and lactating women should be provided with special diet as per the National
Prison Manual. Mothers in postnatal stage should also be allowed separate accommodation
to maintain hygiene and protect their infant from contagion, for at least a year after
childbirth. Further, instruments of restraint, punishment by close confinement or
disciplinary segregation should never be used on pregnant or lactating women.

Pregnant and lactating women should receive advice on their health and diet under a
programme to be drawn up by a qualified health practitioner. Inmates should not be
discouraged from breastfeeding their children. Medical and nutritional needs of women
prisoners who have recently given birth whose babies are not with them in prison, women
who have undergone abort ion or have had a miscarriage should also be included in
treatment and nutrition programmes.

Women prisoners must have access to urine pregnancy test kits within prison , as per their
requirement, free of cost. Pregnant women must also be provided information and access
to abortion during incarceration, to the extent permitted by law.

Pregnant women must be given the option to take up work during their pregnancies and in
the post - natal phase if they so choose. Work provided to them must be suited to their
health conditions.

Aadhar cards must be made for all inmates, especially for mothers and infants to enable
them to become beneficiaries of various government welfare schemes.
Children of women prisoners

When deciding on the prison to which the woman is to be sent, regard should be had to her
caretaking responsibilities if she has a child, and as far as possible, the woman must be given
the choice of selecting the prison.

Children must be kept in the prison in a manner that they are not made to feel like
offenders. Administration should ensure that the facilities provided are tailored towards
children living under their care. NGOs, schools and paediatricians can be engaged to ensure
that children in prisons have access to basic facilities of education, day care, recreation and
a healthy lifestyle.

To the extent possible, prison administration shall strive to create a suitable environment
for children's upbringing, which is as close as possible to that of a child outside prison. E.g.
airy rooms with adequate natural light, minimum security restrictions, outdoor play area,
opportunity to socialize with peers outside prison if not available within prison etc. The
Board of visitors shall inspect these facilities at regular intervals. Women prisoners whose
children are in prison with them shall be provided with the maximum possible opportunities
to spend time with their children.

Children should receive a special diet and be regularly examined by a Lady Medical Officer at
least once a month to monitor their physical growth and condition of physical and mental
health. They should have access to a Lady Medical Officer as per their need.

Children, whether living in prison or visiting, should never be treated as prisoners. The
prison staff must display sensitivity, respect and dignity when searching children. Body
cavity searches should never be applied to children.

Ideally, no child shall be admitted into or retained in prison if he/she has attained the age of
six years. The best interest of the child should be the determining criteria to determine
whether and for how long they should stay with their mothers in prison.

Prior to or on admission, women with caretaking responsibilities for children should be

permitted to make arrangements for those children including the possibility of a reasonable
suspension of detention, taking into account the best interests of the child.

In case where no family/friends are available to care for the child and he/she cannot
accompany the mother to prison, the child should be appropriately placed in a Child Care
Institution. It must be ensured that children of the same woman prisoner are housed
together in alternative care. The prison administration must ensure that the child be placed
in a manner that she/ he can interact with the mother regularly at least once a week.

Children must be removed from the mother’s care with utmost sensitivity, and only after
making adequate arrangements for his/her stay. A register recording particulars of
guardians/persons in whose custody the children of women prisoners are kept must be
maintained. It should also be ensured that the inmate could take custody of her child from
the Child Care Institution on her release from prison. In case of foreign nationals, removal
and alternative arrangements should only be done in consultation with their consular
representatives.
Prison administration should ensure that links between inmates and children outside prison
are maintained throughout her incarceration. The place of interaction between inmates and
their children living outside prison should be one where easy conversation can take place, in
a positive environment, where physical contact is possible between mother and child.

Overnight visits for minor children living outside prison to maintain a bond with their
mothers must be allowed at least once every quarter. A separate area with a positive
homely environment must be provided within the prison for purpose of this stay with the m
other.

Prisons should provide educational scholarships for women inmates’ children above 6 years.
E.g. In Tihar Jail, Delhi, children of inmates who are from Delhi are provided educational
scholarship of Rs. 3,500 for one child and Rs. 6,000 for two children per month, subject to
conditions like income etc. This could be replicated in other states as well.

Living arrangements

Women prisoners sentenced to six months imprisonment or below should be issued 3 sets
of clothing, 2 towels and 3 sets of customary undergarments. This number will increase to 5
sets of clothing, 3 towels and 5 sets of customary undergarments for women sentenced to
over six months. Inmates should be able to choose type of clothing from a set of options as
per preference. At a minimum this should include saree with blouse and petticoat, kurta
with salwar and dupatta, shirt with trouser/long skirt in light colours, but not necessarily
white.

Women in their post-natal phase must be given separate accommodation for one year after
delivery to maintain a certain standard of hygiene and to protect the child from infections
and other diseases. Also, sick women prisoners must be kept isolated for health purposes.

Improvement of health and nutrition

Comprehensive health screening of women must be done on admission, with due regard to
their right to privacy, dignity and confidentiality, including their right to refuse screening.
This will help in identifying health issues, providing adequate treatment and in preparing an
individualised health and diet plan for the inmate. Routine tests must be done periodically
thereafter.

There should be comprehensive medical check-ups on an annual basis, regular medical

check-ups on a monthly basis and access to a lady medical officer at all times for check-up,
testing, treatment etc. as needed by the inmate. Papanicolaou tests and screening for
breast and gynaecological cancer should be done for women on a regular basis. In case lady
medical officer is not available, prisoner will be transferred to the nearest medical facility
where a lady doctor is available.

Women with mental health issues must be transferred to appropriate institutions rather
than keeping them in prisons. Inmates should have access to female
counsellors/psychologists at least on a weekly basis or as frequently as needed by them.
First-time offenders must especially be counselled on admission, to prevent recidivism.
Sterilized sanitary pads should be issued free of cost to women prisoners as per their
requirements with no maximum limit.

Information about preventive measures for HIV, STDs or other gender-specific diseases must
be provided. The prison staff must undergo mandatory training in gender - specific needs of
women, first aid and basic medicine to tackle emergencies and minor issues effectively.

Addressing violence

Body searches must be conducted as per clearly formulated guidelines. While searching
women prisoners, the least intrusive mode should be adopted as considered appropriate in
the situation. The type of search to be conducted should be communicated clearly to the
inmate and reason for the same should be explained. In case of strip searches, they should
be conducted in two distinct steps with upper body and lower body examined one after the
other to avoid complete nudity at a given time. Body cavity searches should be avoided, as
far as possible. CCTV cameras must be used with due regard to the dignity and privacy of
women prisoners.

26 https://thearticle.in/courtroom/plight-of-female-prisoners-three/

A written record should be kept of the type and frequency of searches for all inmates, which
should be available for examination by official visitors.

All staff involved in the custody, interrogation and treatment of prisoner must be sensitised
on gender-issues, human rights and sexual misconduct.

 Formulation and adoption of National Policy on Custodial Justice to Women.

Creation of a statutory autonomous body to be designated as the National Authority on

Custodial Justice to Women (NACJW) which should have the representation of every
component of the criminal justice system namely the judiciary, law, legal aid, police,
prisons, probation and aftercare, and social welfare and mental health custodial
institutions. It should also include representatives of medicine, psychiatry law schools,
schools of social work, women’s groups, human rights and civil rights groups, the
media, professional research and training bodies in criminology and social defence, etc.
Specialized courts must be set up to dispense justice separately and speedily to women.
In addition to the separate Women’s Courts or Family Courts it is recommended that
Nari Bandigriha Adalats be held in the nature of mobile judicial camps as an immediate
modality for rendering speedy redress to women in custody. Such camps and courts
should be held urgently and routinely in social welfare and mental health custodial
institutions also to clear the backlog of pending cases, and to render speedy justice. The
mobile adalats should be conducted on a district-wise or cluster basis so as to cover all
prisons and non-prisons custodial institutions. Its objectives should be to provide
speedy justice. Prison should be brought into the concurrent Lists of the Seventh Schedule of
the Indian Constitution in order to strengthen the process of standardized and uniform
national approaches to reform of custodial conditions.
There is need to have a Comprehensive Prison and Prisoners Act which can bring together in a
single Act the provisions presently dispersed in several Acts. A comprehensive code to
cover the administration of all custodial institutions and the treatment of inmates of
such institutions, with special provisions for the treatment and handling of women.
A critical assessment of the efficacy and relevance of various legislations bearing on
women’s status in custody and their criminality should be undertaken by the Law
Commission. On an immediate basis, appropriate amendments and additional provisions
should be introduced in the IPC and Cr. PC as well as in the Prisons Act, 1894 and Police
Apart from female staff in women’s jails, there should be women D.I.G. in the state
Headquarters preferably from the prison services, particularly to look after the work relating
to women prisons, women prison staff and women prisoners.
There should be permanent wardens and matrons in institutions and it should be
mandatory to recruit them rather than to rely on make shift substitute arrangements.
Released Prisoners Aid Societies should operate in every district which can provide single-window
assistance toward the rehabilitation and mainstreaming of the released prisoners.
The States must agree to enforce a uniform prison manual. Prison amenities for
women and for their children, and the rights and duties of women prisoners should be
clearly identified preferably in a separate volume of the prison manual.
Separate police lock-ups should be established in consultation with State IGs of Police. It should be
mandatory for each police station to provide enclosed space for holding all arrestees and
separated space for female arrestees. Separate Women’s police stations where they exist
should be suitably reinforced with adequate
training and tools of the trade.
A model police manual should be compiled on the lines of the model prison manual and it
should be strictly and uniformly enforced by all States. The manual should carry
indicative standards of minimum space and other facilities and procedures applicable to
women when in police custody. The police should be widely consulted in the
preparation of the manual.
A special unit known as women’s Assistance Police Unit (WAPU) should be created
which should be combined cadre of men and women police, to deal specifically with crime
preventive work and assistance to women at the time of arrest and in custody.
Appropriate linkages should be established between custodial authorities and voluntary
groups/individuals in protecting the rights and dignity of women not only in custody but
also outside.
Counseling cells should be attached to every custodial centre and such cells should encompass
the custodial staff.

Conclusive Remarks:

Justice Krishna Iyer strongly opines that people’s participation should motivate those
who operate the system to manage the system better. The successful implementation
of the approach should be given due recognition and wide publicity. However, some
important steps are being taken by the Central government on the direction of the Supreme
Court.
The Supreme Court on 13th April 2006 27 has delivered a set of guidelines to protect
the rights of women prisoners and their children in jail asking the Centre and state
governments to amend and incorporate the new directions within three months.
Ensuring that the children of women prisoners are not condemned, a bench comprising
Chief Justice Y K Sabharwal, Justice C K Thakkar and Justice P K Balasubramaniyan directed
the authorities to follow its guidelines in letter and spirit so that the fundamental rights
of children to education and healthy living are not violated when they are staying with
their under trial or convicted mother in the jail.
27 R.D. Upadhyay vs State of A.P. & Ors

The legislative and executive apathy to the problem stands in contrast with the response
of the Supreme Court in Delhi Domestic Working Women’s Forum vs. Union of India 28,
where the Supreme Court pointed out legal representation and assistance should be
extended to the victim at once, the police should be under a duty to inform the victim of
her right to representation before any questions were asked of her and she should
financially compensated by the court.
28. AIR 1995 1SCC 14.
Bibliography:

 Verma, J.S. (2000). Penal Reform in South Asia, Key Note Address at the Regional
Conference on Penal and Prison Reform and Access to Justice in South Asia,
Katmandu, Nepal.
 Sirohi, JPS. (2004). Criminology and Penology. Allahabad: Central Law Agency.
  Vickie Jensen and Kristyan M. Kouri in their seminal work titled ‘Women
Criminals: an encyclopedia of people and issues, Vol. I
 AIR 1974 SC 2092
 R.D. Upadhyay vs State of A.P. & Ors
 AIR 1995 1SCC 14.
 https://thearticle.in/courtroom/plight-of-female-prisoners-three/

 Indian Journal of Gender Studies, 16:2 (2009), 253–271]

 [Please see, Press Release of ‘Ministry of Health and Family Welfare dated November
30, 2018]

 Dolan K, Larney S. HIV in Indian prisons: Risk behaviour, prevalence, prevention, and
treatment. Indian J Med Res. 2010; 132:696–700]

 National Expert Committee on Women Prisoners (1986), constituted by the

Government of India

 Model prison manual, 2016

 NCRB, Prison Statistics India, 2018

 Hindustan Times English Newspaper
 Indian Penal Code, 1860
 Prison Act, 1894
 Prisoner’s Act, 1900
 Identification of Prisoner’s Act, 1920
 Exchange of Prisoner’s Act, 1948
 Transfer of Prisoner’s Act, 1950
 Prisoner (Attendance in Court) Act, 1955
 Probation of Offenders Act, 1958
 Code of Criminal Procedure, 1973
 Repatriation of Prisoner’s Act, 2003
 Model Prison Manual, 2003
 Model Prison Manual, 2016
 The Children Act, 1960
 Article 20,21,22 in The Constitution Of India 1949
 Article 14 and 15 in The Constitution Of India 1949
 The Probation of Offenders Act, 1958
 Article 39A, (f) in The Constitution Of India 1949