Towards a humane justice system for women prisoners

ON its Foundation Day (October 16), the National Human Rights Commission organised a conference on the human rights of prison inmates. One session was slated to discuss gender-sensitive prison reforms for women inmates and their children. The speakers emphasised the need for formulating and adopting a national policy on custodial justice for women that addresses their needs and ensures their meaningful rehabilitation.

As per the National Crime Record Bureau, 21,510 women inmates and 1,492 infants were lodged in various jails in the country as on December 31, 2023. Children under six are allowed to stay in jails with their mothers if no suitable care for them is available outside. Of the 1,318 women with infants, 1,049 were undertrials and the remaining convicts.

Women comprise 4 per cent of the prison population and their incarceration raises unique human rights concerns, especially about their children. Imprisonment of female offenders also points to the jurisprudential dilemma of subjecting them to the same sentencing process and correctional standards as meant for their male counterparts.

Female criminality is generally incidental, not instinctive. A woman is the embodiment of beauty, creativity, care and love, desire, prosperity and fertility; crime is not in her nature.

An analysis of patterns and motives behind women taking to crimes suggests that they do so mainly for survival, when they are left with no alternative to meet the economic needs of their children and family. At times, women break the law to express anger against the gender-insensitive social order and norms which injure womanhood. Often, female offenders participate in crimes with their relatives as accomplices for the sake of protecting the perceived family honour and to settle scores with adversaries.

In almost every situation, women offenders are victims of the circumstances and may be paying the price for their bad upbringing and hostile family environment.

More than 80 per cent of the female prison inmates are undertrials. It substantiates that they are treated on a par with male criminals insofar as arrests are concerned. It belies the spirit of the Supreme Court’s judgment in Joginder Kumar’s case (1994), whereby it was ordained that arrests should be need-based and not be resorted to mechanically.

Arrests are justified only if they are required to prevent further crimes, or to protect the victims of crimes and witnesses, or to ensure that the offenders do not dodge the law. Female lawbreakers do not qualify for arrest on any of these grounds since their criminal instincts are generally momentary and never revengeful.

Similarly, the pre-trial detention of females appears to be a purposeless exhibition of power by justice delivery organs. Except in heinous crimes, incarceration of undertrials is needless. There is no reason why women should not be released on bail.

In the absence of a gender-sensitive sentencing policy, women convicts are suffering the same correctional measures as provided for men. Females are temperamentally different from men and deserve non-custodial correction options, like community service, release on pre- and post-sentence probation, along with mandatory counselling.

Women should be imprisoned in exceptional cases, and that too in a facility near their homes. This justifies the need to have enclosures for women in every district jail. Their architecture should reflect feminine orientation.

As many as 77 per cent of the victims of crimes committed by women are their family members or other known persons. Thus, they are generally deserted by their loved ones and loneliness gradually drags them into mental depression.

The incarcerated women’s life is traumatic; they are locked in overcrowded barracks for 16 to 18 hours a day in unhygienic and hostile conditions; canteen facilities are limited; the supply of sanitary napkins and medical care is inadequate; work opportunities are rare, and idleness is their only companion. A majority of them are starved of money required to meet their daily wants. Almost every woman suffers from loss of identity. The fear of retaliation and punishment makes them deaf and dumb. They are generally emotionally disturbed and intellectually disoriented and vulnerable to exploitation.

Their infants are not treated with due care and dignity; they are also locked up with their mothers for want of adequate childcare facilities.

Problems of women prisoners arise from legal oversight and infrastructural deficiencies. Law must provide for mandatory bail or suspension of sentence of pregnant women and infants’ mothers. They deserve to be classified as separate beneficiary groups under the direct benefit transfer schemes of the government to mitigate their hardships. In his report on women prisoners (1987), Justice V R Krishna Iyer observed that values are frozen and organs of power arrogantly masculine; women deserve a separate ‘soulful penology’ and correctional approach.

KP Singh is former DGP, Haryana.

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