Role Of Indian Judiciary In Protection Of Right Of Female Prisoners
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Category: General Law
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ROLE OF INDIAN JUDICIARY IN PROTECTION OF RIGHT
OF FEMALE PRISONERS Aditi Sharma, Babasaheb Bhimrao Ambedkar University Lucknow Nishith, Babasaheb Bhimrao Ambedkar University Lucknow
ABSTRACT
The Indian judiciary as guardian of Indian Constitution and custodian of Fundamental right has played an significant role in upholding the legal and constitutional rights of female prisoners and observing, addressing and guiding on critical issues such as inadequate healthcare, cases related to custodial violence, and the absence of gender specific infrastructure within Indian Prisons and very limited facilities.
Indian Judiciary gas also played a significant role in the interpreting the principles observed under Articles 14, 19, and 21 of the Indian Constitution, as well as India’s commitment to international laws and treaties where India is a signatory such as under the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules). Judicial interventions in the protecting the right of women prisoners and reforming the prison administration have been pivotal in ensuring the protection of the dignity and fundamental rights of female prisoners. Through landmark jurisprudence, the courts have addressed every possible issues such as custodial violence, harassment, and the lack of gender-specific facilities.
Judicial pronouncements by the Hon’ble Supreme Court and High Courts have directed the establishment of separate and adequate healthcare provisions for pregnant women, nursing mothers, and children residing within prison premises. Furthermore, the judiciary has emphasized the necessity of implementing vocational training, educational programs, and rehabilitation measures specifically designed for female prisoners to facilitate their effective reintegration into society upon release. Keywords: rehabilitation, Judicial pronouncements, Indian Constitution, Female prisoners, custodial violence
INTRODUCTION
A woman is universally seen as epitome of love, unity and devotional and women as being are blessed with the ability of being a mother along with many other responsibilities. Our Indian society confers an honourable status to the women. However, in derogation of this belief, Indian judiciary has been fooled with an enormous cases of domestic violence, dowry death, honor killing, rape, female foeticide etc.. The National Crime Records Bureau (NCRB) has released its in its Prison Statistics Report for 2019, and it showcases the ever-worsening plight of women prisoners. As per the data, out of the 4,78,600 prisoners, 4,58,687 were male prisoners and 19,913 were female prisoners and also in last 5-year period between 2014-19, the number of women inmates has increased by 21. 7% (from 3,001 to 3,652) in women jails and by 10. 77% (from 14,680 to 16,261) in regular jails.
, Indian judiciary has taken a stand of extreme strictness regarding these matter by delivering progressive verdict against culpable parties and dispensing justice to the victim. In case of Chandra Prakash Keval Chand Jain vs State of Maharashtra1 the Supreme Court expressed its sentiments as follows " Unfortunately, there is a decline in the regard for womanhood in our nation. The current global standard of decency and morality in public life is also present in our country. Therefore, if the judiciary rigorously prosecutes individual who violets social norms, decency and morality in public life can be safeguarded. " Violence against women incorporates various forms of maltreatment such as dowry death, gangrape, adultery and physical and mental abuse of wife.
The supreme court in case of Narayan Gupta vs Ramaswamy Gupta2 significantly held that “Act of domestic violence are frequently perpetrated in fit of rage motivated by sexual envy. The mistreatment and frequent abuse of women demonstrate a profound and extreme antipathy towards social sentiment. ” Despite the underlying and known negative effects of prison on women, their special need are seldomly taken into consideration in our Indian criminal justice system. The condition of women and their children is not hidden by the significant catastrophe in prison population demanding meeting of gender specific needs of women prisoner. The Indian constitution provides equality for all women in India under article 14, safeguards dignity of women under article 51 (A), ensures equal opportunity and equal pay for equal work
1 Chandra Prakash Keval Chand Jain v State of Maharashtra [1990] SC 658
2 Narayan Gupta v Ramaswamy Gupta [1988] SC 2268.
under Article 16, maternity relief and provision for securing human working condition and maternity leave as outlined under article 42. Article 21- right to life also includes right to fair trial which is a basic human right. This article is mainly focused on under trial convicted women prisoner and their dependent children residing in different prison. Moreover, this paper highlights the judicial approach in addressing these issues by comprehending ground reality. STATUTORY PROVISIONS Various statutes in India, the most basic being the constitution, guarantees equal rights to women prisoners, under trial, convicts and offenders. Article 14 which provides for equal protection of laws for women in India, article 15 (3) which prohibits any type of discrimination on the ground of sex, article 21 which provides for most basic human right i. e. right to life and personal liberty.
Article 39A which was added by constitutional 49th amendment act in
1976 provides for ‘free legal aid’ which therefore confirms the equal approach towards justice
for everyone. Under Bhartiya Nyaya Sanhita 2023 the rights of female prisoners are protected under section
118 states Voluntarily causing hurt or grievous hurt to extort confession, section 73 states
Assault or criminal force to woman to outrage her modesty, Section 68 Sexual intercourse by person in authority. Under Bhartiya Nagarik Suraksha Sanhita 2023, Section 43 states that, no women can be taken into the custody after sunset and before sunrise, except some exceptional situation with prior permission of first class magistrate, Section 49 provides that a women police officer can only has the authority to search the women with utmost decency, section 53 of BNSS gives direction that women accused should only examined by or under the supervision of women medical officer, if not available then by a registered female medical practitioner.
Provisions are also made under Rights under Prisoner’s Right Act, 1897 under Section 27(1) of this Act which states that where there is a common prison for men and women inmates, the women inmates must kept in ‘separate building or separate parts of same buildings’. This is to prevent them from ‘seeing or conversing or holding any inter-course with the male prisoners’. INTERNATIONAL POSITION The expanding arena of human rights guaranteed to women, has been condoned with a number of obstacles and law violation, hence there was a requisition for distinct composition in order to assert, protect and preserve women’s human rights, which formed the basis of Convention of the Expulsion of all variety of discrimination against women in the year 1967.
“As stated in Article 1 and 55, one of the main objectives of United Nations is the Promotion of Universal respect for human rights and fundamental rights guaranteed irrespective of any distinction, including sex or gender. The Universal Declaration on Human Rights also proclaims that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind including sex”3. Therefore, discrimination of women on any ground whatsoever is not in adherence to the human dignity, values and rights of women and is totally against the moral of society, because by practicing such discrimination on any level leads to the neglection of better potentialities of women without its utmost actualization.
4 In the year 1955 Geneva adopted Standard Minimum Rules for the Treatment of Prisoners5 which provided special provision for women prisoners who are pregnant by providing them with clean and hygienic accommodation for pre and post-natal treatment. These rules also provide free legal aid to such untried prisoners if they desire so. “Article 9 of International Covenant on Civil and Political Right (ICCPR)6 is a significant documents in regard of the rights of prisoners which guarantee the right to life for every human being vis-a vis provides for the elimination of cruel or inhuman treatment to any human being. ” Article 1 of Convention against Torture and other Cruel and Inhumane or Degrading Treatment or Punishment was adopted in the Year 1984 by the U. N.
General Assembly defines –“the torture as any activity by which severe pain or suffering which may be mental or physical in nature is inflicted on a person for the purpose of obtaining some information or confession, punishing him for an act he or a third person has committed or is suspected of having committed. It also provides that every state party is bound to take effective measures in form of either legislative or administrative or judicial action as a precaution against the acts of torture. ”
CHALLENGES
TO BE FACED There are number of reports which indicate the growing population of female prisoners in India 3Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR) art 2
4 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR) art 10
5 Standard Minimum Rules for the Treatment of Prisoners (adopted 30 August 1955, approved 31 July 1957 and
13 May 1977, UN Economic and Social Council Res 663 C (XXIV) and 2076 (LXII))
6 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 9 over the past few years and since the number of female prisoners in increasing it is directly proportional to the challenges faced by females in the prisons due to lack of basic amenities required for females encircling their physical, mental, security and economic aspects. Some of the problems are highlighted below:
1) Rubber-necking population and underprivileged living conditions- The
overcrowding and poor living conditions in Indian prisons, is one of the imperative issues that affect both male and female inmates. The reasons like the large number of under-trial prisoners, delays in the criminal justice process, limited infrastructural development, and growing numbers of detainees, all contribute to this problem. For female prisoners, overcrowding creates an even more acute issue, as the amenities often aren’t harnessed to meet their specific needs. This includes aspects like hygiene, and safety, which are crucial for their beings specially females. The effects of overcrowding are extensive: insufficient toilets, lack of ventilation, and the increased risk of infectious diseases are not just discomforts they compromise inmates' health and well -being, which clearly exploits their basic human rights which are obviously guaranteed.
To address these challenges, a multi-dimensional approach could help: a) Judicial Reforms: Speeding up of trials and reducing the number of under-trial prisoners is a pivotal step. Bail reforms could ensure that convicts who are not a risk or danger to society are not kept in custody for longer and extended periods. b) Prison Infrastructure Improvement: Developing existing prison facilities and building new ones designed with adequate space, hygiene facilities, and privacy considerations—especially for women—could help combat overcrowding to some extent. c) Decriminalization of Minor Offenses: decriminalizing minor offenses could help reduce the number of individuals convicted for non-violent crimes.
d) Alternative Sentencing: Implementing alternatives to imprisonment, such as community service or house arrest for non-violent offenders, this could help relieve pressure on the prison system. e) Health and Sanitation Focus: Investing in better sanitation systems, medical care, and regular health check-ups could address immediate risks associated with poor living conditions and when it comes to women, adequate hygiene facilities are very crucial because of special needs of women during menstruation, pregnancy (both pre and post). These steps would not only correct the quality of life for inmates but also commit to a more abled and humane criminal justice system for our country.
2) Custodial Violence- Custodial violence constitutes a significant setback to the
principles of democracy and the protection of human rights. Among the primitive obstacles faced by female detainees in custodial settings are gender-based discrimination, the increased risk of custodial rape, and several forms of abuse and violence. These issues are further accelerated by the insufficient presence of female staff and the lack of correctional facilities designed specifically for women. Startling concern is the grave issue of custodial rape, a reprehensible and alarming form of abuse occurring within detention facilities. The overpopulation of common prisons presents a substantial risk of custodial violence, particularly custodial rape, for female inmates.
3) Separation from children and family- The separation of female inmates from their
children and families presents a significant peril, contributing to their emotional distress. Prolonged separation, coupled with limited opportunities for visitation, infuriate the disruption of family relationships and retard the effectiveness of rehabilitation efforts. The paucity of familial contact undermines the inmates' ability to maintain family bonds, which are critical to their emotional well-being and reintegration into the society. Female inmates face a series of hardships, including insufficient rehabilitation and reintegration support upon their release, limited access to legal aid, and barriers to justice. Added issues such as societal stigmatization, discrimination, inadequate educational opportunities, a shortfall of female staff, and low standard of accommodation further inflame their difficulties.
To effectively address the various hardships experienced by female prisoners in India, it is vital to implement comprehensive reforms. These reforms should include improvements in prison administration, enhancements to living conditions, the provision of essential medical care, measures to prevent custodial violence and abuse, and the promotion of gender equality in the justice system, alongside robust reintegration support upon release. JUDICIAL ACTIVISM RELATED TO RIGHT OF FEMALE PRISONERS The Indian judiciary has obviously played a pivotal role in providing and safeguarding rights of women prisoners by giving landmark verdicts in number of cases and thereby emerging as the true saviour and protector of human rights principles. The supreme court of India rightly manifolded that: “....
there could be several factors that lead a prisoner to commit a crime but nevertheless a prisoner is required to be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. ”7 The first case where custodial violence to women prisoners was took into notice was Sheela Barse v. State of Maharashtra8, in this case women were assaulted in Bombay Central Jail. The apex court in this case laid down a comprehensive guidelines to correct and improve the condition in police lock up and to provide better security to inmates specially women inmates and held that this is the violation of article 21 of the Indian constitution. The detailed guidelines include the following:
1) Female suspect should not be kept in police lockup in which male suspects are detained.
Female suspects must be kept in separate police lockup guarded by female constables.
2) Interrogation of female suspects should be carried out only in presence of female police
officers/constables.
3) Whenever a person is arrested and taken to the police lockup, the police will
immediately give intimation of the fact of such arrest to the nearest Legal aid Committee which will provide legal assistance to the arrested person at the cost of State,
7 In Re-Inhuman Condition in 1382 Prisons [2016] Writ Petition (Civil) No 406 of 2013 SC
8 Sheela Barse v State of Maharashtra [198] 2 SCC 96
provided he is willing to accept such help.
4) The District and Session Judge will make surprise visit to police lockups in the city
periodically with a view to providing the arrested person give an opportunity to hear their grievances and ascertaining what the conditions in police lockups are and take up the matter with the Commissioner of police or Home Department or Chief Justice of High Court.
5) Whenever a person is arrested the police must obtain from him the name of friend or
relatives of the person whom he would like to be informed about his arrest.
6) The Magistrate before whom arrested person is produced shall enquire from arrested
person whether he has any complained of torture or maltreatment in police custody and inform him of his right to be examined medically under section 5 of Bhartiya Nagarik Suraksha Sanhita. For the effective implementation of the above guidelines given by supreme court it is necessary that inhumane prison rules are replaced by humane rules and conditions if the prisons are made adequate enough for survival of humans without curtailing there natural human rights guaranteed by the Indian constitution. In the landmark case of R. D. Upadhyay v. State of Andhra Pradesh and Others9, the supreme court highlighted the gender specific needs of female prisoners and laid down minimum standards of food, health and medical check ups, sanitation, education, clothing, etc. to be provided to the females and their grown up children. In another case of Sunil Batra v.
Delhi Administration10, Supreme Court said that every person whether or not he is a prisoner must not be deprived of his right to accesses fair trail and right to meet his family and friends. Every prisoner has the right to meet and consult the lawyer of his choice without anyone’s interference. The case of Christian Community Welfare Council of India v. Government of Maharashtra11 enlarges the arena of rights of women prisoners. The Bombay High
9 R D Upadhyay v State of Andhra Pradesh and Others Writ Petition (Civil) No 559 of 1994 (SC)
10 Sunil Batra v Delhi Administration [1980] SC 1579.
11 Christian Community Welfare Council of India v Government of Maharashtra, [1996] (1) BOM CR 70.
Court in this case held that ‘women prisoners should be arrested only in presence of lady constables and no arrest of women should take place ‘after sunset and before sunrise’. In addition to it the high court also directed to formulate a special committee by the state government for the purpose of looking after the police accountability towards the prisoners and note down some special provisions for women prisoners to protect them from sexual abuse or any kind of custodial tortures. In another case of D. B. M. Patnaik v. State of A. P 12, the supreme court of India declares that mere detention of a person does not suspend his fundamental rights. The same principle was held in Charles Shobhraj v. Superintendent, Tihar Jail13. In the landmark judgement of State of Maharastra v. C. K. Jain14 the Supreme court pronounced regarding rape in custody.
The Supreme Court held that “it is unlikely for a woman to make a false allegation of rape, emphasizing that the presumption of truth should favor the victim in such cases. Furthermore, the Court recognized that delays in filing an FIR in rape cases may be understandable, and if a police officer is found guilty of misconduct in handling such cases, the penalty should be exemplary. ” In the historic case of Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar15, the Indian judiciary manifested its role in protection of human rights. The Court declares that: “All women and children who are in jails in the state of Bihar under ‘protective custody’ or who are in jails because their presence is required for giving evidence or who are victims of offence, should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after.
” In this case the court expressly held that women must be sent to welfare homes which are established by social welfare departments. In the landmark judgement D. K. Basu v. State of West Bengal16, the Supreme Court held that “Custodial torture is a naked violation of human rights, dignity and
12 D.B.M. Patnaik v State of A.P, [1974] SC 2092
13 Charles Shobhraj v Superintendent, Tihar Jail [1978] SC 1514
14 State of Maharastra v C.K.Jain [1990] SC 658.
15 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar [1979]SC 1360
16 D.K. Basu v State of West Bengal [1997] SC 610
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 Vikram Deo Singh Tomar, Chief Justice Pathak aptly observed17: “ The Right to live with human dignity is the fundamental right of every Indian citizen. And so, in the discharge of its responsibities to the people, the state recognises the need for maintaining establishment for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore of necessity provision must be made for their protection and welfare. Therefore the judiciary plays a pivotal role in safeguarding the rights and dignity of women prisoners.
It ensures the protection of their rights by interpreting laws, upholding the principles of fair trials and due process, and preventing arbitrary detention, custodial abuse, and violence. Moreover, it also fosters access to justice for all individuals be it male, female or any individual whose rights are violated in any way. Through its supervisory and adjudicatory functions, the judiciary has long established itself as a protector of human rights and dignity which is guaranteed by the Indian constitution.
CONCLUSION
AND SUGGESTIONS The Supreme Court of India and various High Courts play a crucial role in interpreting constitutional provisions to protect, safeguard and preserve the rights of girls and women. In cases where government legislation, rules, or orders are detrimental to women and female children, the judiciary comes into the role to safeguard their rights. While the judiciary remains the last resort, it is also dedicated in promoting the welfare of women and girls. It is essential to recognize that society faces a collective threat, requiring a unified response to address the growing concerns related to violence and criminality, which disproportionately affect women which are no doubt the vulnerable section of society. A collective sense of
17 Vikaram Deo Singh Tomar v State of Bihar, [1988] SC 1782.
responsibility is requisite need in light of the increasing incidents of violence against women of all age groups. If societal crime is not effectively addressed, no amount of voter participation will be meaningful, specially when it comes to offences against women and young girls. No person is flawless, as both right and wrong are inherent in human nature. Each experience, whether good or bad, whether positive or negative, contributes to personal growth and enhances learning. The prison system’s main objective is to reduce crime rates, rehabilitate offenders, and transform them into law-abiding and responsible citizens, offering them a second chance to grow and learn.
However, mistreatment, discrimination and denial of basic human rights in the prison which no doubt very rampant cannot make this goal achievable unless a better, enhanced and improved humanistic approach is adhered by and that approach must be decided and directed by our judiciary and effectively implemented by authorities There is an urgent need to dismantle stereotypes and prejudices inculcated in the criminal justice system. A gender-sensitive approach and efforts must be followed to combat structural inequalities which will be bringing about significant changes thereby leading us to a better society which is worth living for all the sections of society. By confronting systemic injustices, listening to the voices of those affected, and treating prisoners with dignity, the true purpose of the prison system—rehabilitation and reformation—can be achieved.