International Journal of Advanced Research in

Management and Social Sciences ISSN: 2278-6236

RIGHTS OF WOMEN PRISONERS IN INDIA: AN EVALUATION

Dr. Mukesh Garg*

Nareshlata Singla**

Abstract: Indian society gives a respectable status to the women. She plays a vital role in the

society. The important role she plays is in the capacity of mother. Constitution of India gives

status of equality to the women in India. It also imposes obligation on the State to protect

the rights of the women and to fulfil the requirements of international conventions regarding

the rights of the women. But the reality is women in prisons are facing a number of

problems. Even her basic human rights are being ignored despite of a number of directions

from the Supreme Court, High Courts and by recommendations of different Committees. It

creates difficulties to them in the prison which requires a special attention and needs to be

removed. Women prisoners in Indian jails are less in number than the male prisoners. It may

be a cause of overlooking the rights of women prisoners. The main purpose of this research

paper is to highlight the problems of the women prisoners, violation of the human rights of

the women prisoners, condition of women jails, to enumerate human rights and

constitutional rights of the women prisoners and to suggest the necessary changes in the

Indian Prisons Act 1894.

Keywords: Prisons, Constitutional Rights, Human Rights, Sexual Harassment, Custodial

Torture, Women Prisoners

*Assistant Professor, Law Department, Ch. Devi Lal University, Sirsa (Haryana) India

**Teaching Associate, Law Department, Ch. Devi Lal University, Sirsa

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1. INTRODUCTION:
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, Mahila Kosh, 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 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

1
http://www.publishyourarticles.org/knowledge-hub/essay/an-powerful-essay-on-the-status-of-women-in-
india.html
2
http://www.lawisgreek.com/category/constitution-india/landmark-court-rulings

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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 Rajya Sabha

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 November 28, 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 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.

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 5,

Dr. Upneet Lalli mentioned that the Prisons Act, 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

This paper has been prepared to consider the rights of the women prisoners in India and

also highlights the problems of the women prisoners in the prison. Non doctrinal method

has been used to prepare this paper. This paper has been divided into five parts. First part is

introduction which says about the general conception about the women in India. Second

part discusses about the constitutional status of women in India. It describes the various

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

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constitutional provisions of the Constitution of India which provide equal status to the

women. Third part of this paper describes different rights of the women prisoners. It

describes their basic human rights, constitutional rights and statutory rights. Fourth part is

related to the problems of the women prisoners. It describes various problems which they

are facing in their day to day life in the prison. Fifth part of this research paper concludes it

and also gives some suggestions.

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 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 against Women (CEDAW) in 1993. 10 Article 12 (2)

of this Convention provides that States Parties shall ensure to women appropriate services

in connection with pregnancy, confinement and the post-natal period, granting free services

7
http://Woman & Child Prisoners\Welcome to ANSWERING LAW India's Premier Portal for Lawyers,
Students, NRI's and Public RIGHTS OF PRISONERS - A MYTH OR REALITY- AISWARYA.T,3rd
Semester, NUALS.htm
8
http://airwebworld.com/articles/index.php?article=1245
9
http://www.rwi.lu.se/pdf/seminar/manoj05.pdf
10
http://wcd.nic.in/

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 International Journal of Advanced Research in
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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 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

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 Batra vs Delhi Administration 16 held that whether inside prison or outside, a person

shall not be deprived of his guaranteed freedom save by methods ‘right, just and fair’. The

11
http://www.unhcr.org/refworld/pdfid/3ae6b3970.pdf
12
http://www.un.org/en/documents/udhr/index.shtml#a
13
http://www2.ohchr.org/english/law/ccpr.htm
14
Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 1514
15
http://Woman & Child Prisoners\Proposition laid down by the Supreme Court of India in the context of
Torture in prisons and Human Dignity.htm
16
AIR 1980 SC 1579

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court process casts the convict into the prison system and the deprivation of his freedom is

not a blind penitentiary affliction but a belighted institutionalisation 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

2. The female prisoners have the right to live separate from the male prisoners. Section

27(1) of the 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, section 31 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

section 33 (1) of the Prison Act, 1894 provides that every civil and unconvicted

17
http://www.vakilbabu.com/Laws/SubList/SList.htm
18
The Prison Act, 1894, Section 2, 1894, Section 24 (3).

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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 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. (2) 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

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

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their mothers.

Rule 24 that the medical officer shall see and examine every prisoner as soon as

possible after his admission and thereafter as necessary, with a view particularly to

the discovery of physical or mental illness and the taking of all necessary measures;

the segregation of prisoners suspected of infectious or contagious conditions; the

noting of physical or mental defects which might hamper rehabilitation, and the

determination of the physical capacity of every prisoner for work.

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

7. 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

20
http://unispal.un.org/UNISPAL.NSF/0/70D535E1E3DCA2B885256F010074 C34D

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be considered for early release on personal bonds. 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

8. Article 39 A of the Constitution of India empowers the women prisoners to secure

free legal aid. 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, Nirmala

Niketan, Bombay in the case of Sheela Barse vs State of Maharashtra 23 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 Sunil Batra vs Delhi Administration 24 held that Lawyers

nominated by the District Magistrate, Sessions Judge, High Court or the Supreme

Court will be given all facilities for interviews, visits and 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.

21
http://articles.timesofindia.indiatimes.com/2008-05-23/india/27771005_1_women-
prisoners-ncpcr-legal-aid
22
http://Woman & Child Prisoners\'Jails should reform prisoners' - Times Of India.htm
23
AIR 1983 SC 378.
24
AIR 1980 SC 1579

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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

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 expeditiously as possible. Similarly, mere sentence does not restrict the right to

freedom of religion.

10. 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 Hussainara Khatoon vs Home Secretary,

State of Bihar 26 held that speedy trial is a fundamental right implicit in the guarantee

of life and personal liberty enshrined in Article 21 of the Constitution.

11.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. 27

12. 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

25
Sheela Barse vs State of Maharashtra, AIR 1983 SC 378
26
(1980 ) 1 SCC 81. http://www.lfhri.org/index.php/judgements/human-rights-judgements/22-speedy-trial
27
http://www.vakilno1.com/bareacts/CrPc/s54.htm

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Government Hospital. 28

13. 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

4. 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. 30 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. 31 Women prisons in India are

not sufficient in number. According to the Prison Statistics India 2010 the number of total

prisons is 1393, the classification of which is shown in the below mentioned Table 32.

Table- 1

Name of Jail Number of Jails Name of Jail Number of Jails

Women Jails 18 Open Jails 44

Central Jails 123 Borstals Schools 21

District Jails 322 Special Jails 26

Sub Jails 836 Other jails 3

28
R.D. Upadhyay vs State of A.P. & Ors, AIR 2006 SC 1946.
29
http://Woman & Child Prisoners\Prison Law and Regulations Indian Law.htm
30
Monitoring Prisons: A Visitors Guide, 2010 by Commonwealth Human Rights Initiative.
31
http://www.hindu.com/op/2004/04/20/stories/2004042000251700.htm
32
National Crime Records Bureau, Ministry of Home Affairs, India.

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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 30 April 2012) only demonstrates the problem of overcrowding of prison in

Table –II.

Table – II

Total Capacity of the Women Number of women prisoners in the Prison

Prison in Tihar Jail

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. 33 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. 34

In a National Seminar on Prison Reforms on 15th April, 2011 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

33
http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile
34
Supra Note 32.

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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 2010, 34 deaths of female inmates were reported in 2010, out of which 5 deaths

were suicidal in nature. 35 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. 36

Table – III

Period of Stay in the Prison of Tihar Jail 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

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, 37 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

35
http://sanhati.com/articles/4747/
36
http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Prisoner+Profile
37
1996 AIR 1619.

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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.

ii) 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. 38

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. 39 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. 40

38
http://ijg.sagepub.com/content/16/2/253
39
http://edition.myjoyonline.com/pages/news/200705/5199.php
40
Rama Murthy vs State of Karnataka, AIR 1997 SC 1739

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 International Journal of Advanced Research in
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In Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and others 41, 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 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. 42

iii) 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 2006 to 28 February 2010.Citing the case of Maloti Kalandi, wife of

41
AIR 1981 SC 746.
42
http://ihranewdelhi.com/hr_prisons.html

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Badal Kalandi who along with children was rescued from being trafficked, was handed over

to the Tamulpur police station, Baksa district of Assam for safe custody. Instead of providing

safety, Sub-Inspector Sahidur Rahman summoned the victim to his official quarter and

raped her. 43 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. 44

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. 45 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 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. 46 Supreme Court 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

43
http://www.panthic.org/articles/5394
44
http://articles.timesofindia.indiatimes.com/2011-03-08/chennai/28667863_1_women-prisoners-tiruchi-jail-
wardens
45
http://articles.timesofindia.indiatimes.com/2012-04-22/delhi/31381841_1_jail-warden-tihar-jail-jail-staff
46
P. Pugalenthi vs The State of Tamil Nadu on 17 July, 2009

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rights of women, who are often victims of violence and discrimination. 47 Soni Sori 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. 48

iv) 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 2008-2009 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. 49 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. 50

47
http://Woman & Child Prisoners\The Hindu States Tamil Nadu Judge discrimination against women a
global phenomenon.htm
48
G:\Woman & Child Prisoners\Delhi - All India Meet on Women Prisoners and Custodial Violence, Mar 31 at
Sanhati.htm
49
http://www.youthkiawaaz.com/2012/02/the-deplorable-condition-of-women-prisoners-in-india/
50
http://legaljunction.blogspot.in/2011/11/proviso-to-section-4371-of-crpc-is-bail.html

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5. CONCLUSION AND 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. Lok Adalats

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 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.

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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.

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