ABSTRACT
Does her being a criminal give licentious men a free ticket to rob her of her dignity?[1] Does she become a piece of meat for them, onto which they can pounce whenever they please and satisfy their animalistic lust? This Article deals with the current legal issue of women prisoners getting pregnant inside the prison. The issue is currently in the news and has become a point of discussion as it’s raising concern that these female prisoners are being subject to sexual harassment inside the Jail Premises. Through this article, the author sheds light on the issue at hand by drawing inferences from various news articles as to what could be the possible reasons behind these pregnancies. The article further discusses in brief about various acts, rules, and cases that protect the rights of prisoners in general and specific provisions relating to sexual harassment. Finally, the article addresses the current ground-level situation and concludes with suggestions to deal with the prevalent grassroots-level problems.
INTRODUCTION
What’s the News, Why in News?
On February 8th, Thursday Adv. Tapas Kumar Bhanja, who is an Amicus Curiae, submitted his report to a division bench of Justice T.S Sivagnanam and Justice Supratim Bhattacharya of Calcutta High Court. Mr. Bhanja in his report submitted that women prisoners are getting pregnant inside the jail and as a result, a total of 196 babies are currently in various jails of the State of West Bengal.
He also requested the bench to prohibit the entry of male staff of correctional homes during the enclosure of women’s presence. Mr. Bhanja shared his experience of a visit to one of the correctional homes, along with the correctional home’s inspector general and secretary of the district legal services, where he found a woman pregnant. He further mentioned how he had previously witnessed the birth of 15 babies in such homes.
Seeing the seriousness of this issue, the Bench took the advice of the Amicus Curiae and scheduled the matter for hearing on Monday, 12th of February, before a criminal bench.[2]
On the very next day, the 9th of February, the Supreme Court also showed seriousness towards the matter and took cognizance, after which the two-judge bench of Justice Sanjay Kumar and Justice Ahsanuddin Amanullah appointed Adv. Gaurav Agrawal as Amicus Curiae in this matter and directed him to do further research. [3]
What inferences can be drawn from this issue?
As per the prison statistics of 2022 by National Crime Records, there are 1537 total women and 1764 children inside the jails (as of 31st of December, 2022).
The issue at hand could make a person wonder how these women prisoners are getting pregnant inside the jail and correctional homes, and the very first assumption that could be drawn is the strong possibility of sexual harassment.
It is a shame that even after enduring a tragic life outside the jail, which might have led these women to commit crimes, they are not even safe in the premises of the jail. The other possibility of them getting pregnant inside could also be consensual sex, but even in such cases, most of the time it’s forced consent. Various studies also show that most of such cases are of coercive sexual intercourse, and in such situations, the female is a weak person and the powerful authorities make them surrender to their knees and force them into having sexual intercourse. If the women refused, they would have to bear severe repercussions such as physical and mental torture. These authorities would also starve them of the basic necessities, hence, consent which is already a grey concept becomes even darker behind the bars.
The third and last inference that could be drawn is the prisoners getting pregnant during conjugal visits. It is a right that has been given to the prisoners to spend some quality time with their marital partners to fulfill their conjugal rights and other purposes such as procreation.
Hence, all of these cases cannot be combined and should be dealt with on a case-to-case basis, however, sexual harassment being the most dangerous of all, needs to be treated as an individual issue with utmost urgency and importance.
LEGAL FRAMEWORK IN PLACE
What existing legal acts and cases are governing the Rights of Prisoners and protecting them against sexual harassment?
Be it at home, streets, or even in prisons- statistically, women are more prone to sexual harassment. However, we cannot neglect the fact that even male prisoners, though not capable of getting pregnant, are subject to the same mental, physical, and sexual harassment. A baby bump may not be a reason for suspicion for them, but they can still endure such abuses. Therefore, as per Articles 21, 22, and 14, of the Constitution of India, all of these convicts have certain rights which must be protected irrespective of their gender, and irrespective of the fact that they are criminals. They should still be given humane treatment and should be fairly punished as per the law, not as per someone’s own dictatorship. [4]
In the case of D.B.M Patnaik Vs State of Andhra Pradesh[5], the Supreme Court of India held that a detained person cannot be deprived of their fundamental rights.
Acts and Rules Governing Prisoners’ Rights in General-
The Prisons Act, 1894:
This is the very first legislation that safeguards the rights of prisoners in India. It talks about the accommodation and sanitary conditions for the prisoners, along with various other provisions on the mental and physical state of the prisoners. It also contains provisions relating to the fair treatment of the prisoners.
The Transfer of Prisoners Act, 1995:
This Act mostly focuses on the removal of any prisoner who is of unsound mind from the detention center and shifting them to a lunatic asylum to provide them with proper treatment.
The Repatriation of Prisoners Act, 2003:
This Act provides for the transfer of certain prisoners from India to a country or place outside India and vice versa.
The Prisoners (Attendance in Courts) Act, 1955:
This Act deals with recording of attendance of prisoners; to obtain evidence and to answer a criminal charge.
The Criminal Procedure (Identification) Act, 2022
This Act lays down the proper procedure for taking measurements of convicts and other persons for identification during a criminal matter and to preserve records and for matters connected therewith and incidental thereto.
Along with these Acts, we have 2 Rules, The Repatriation of Prisoners Rules, 2004, and The Criminal Procedure (Identification) Rules, 2022, and 2 Model Prison Manuals, one of 2003 and one of 2016. [6]
Specific Provisions for curbing sexual harassment against prisoners and related case laws:
Indian Penal Code, 1860:
The provisions under the code that deals with sexual harassment against female prisoners are-
Section 376 (2)- This section ranging from various sub-clauses, specifically addresses rape committed against women under various custodial settings, such as police stations, jails, hospitals, and other related places.
The main aim of this provision is to give protection to these vulnerable convicts who may be at a higher risk of violence due to their confinement and their dependency on the people who are in authority. This provision outlines that police officers and other public servants, being responsible for upholding the law, if, ever encroach on it and commit offenses such as sexual harassment and rape while performing their official duty, would be subject to even stricter punishments including a minimum punishment of 10 years extending up to life imprisonment and other fines.
Other clauses such as (2) (d) of section 376, specifically tackle the current issue, and extend the protection of law to inmates of jails, remand homes, and various other places of custody. It makes the staff and other management personnel responsible for abusing their authority by committing acts of violence against inmates. This provision also recognizes the vulnerability of certain groups such as pregnant women, other individuals who are incapable of giving consent, those who may be under the dominance of the perpetrator and have to give forced consent, or other people who are suffering from mental or physical disability.
This provision lacks in terms of gender neutrality, as the victim could also be a male or a trans person.[7]
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
Female prisoners also have rights under this act, and they are eligible to file complaints under the same.
Case laws:
Christian Community Welfare of India vs Government of Maharashtra (AIR 2004 SC 7)
In this case, the Supreme Court of India held that women can’t be arrested after sunset and before sunrise and an arrest can only be done in the presence of a female constable.
State of Maharashtra vs C.K. Jain
In this case, the supreme court of India held that if a female filed a complaint of rape, the general presumption should be taken that no woman would make a false allegation relating to such grave offense. They also emphasized that when a woman files a complaint against a police official for rape, a delay in making such complaints would be understandable, given the condition of such a convict.[8]
Case Studies:
Custodial Torture of Soni Sori-
Soni Sori, a prominent human rights activist and school teacher from Chhattisgarh, endured horrific custodial torture at the hands of law enforcement officials. Accused of aiding Maoist groups, she faced relentless persecution, including physical and sexual abuse, electric shocks, and forced insertion of chili powder and pellets into her body. Despite clinical evidence supporting her claims, she was denied bail and confined to various prisons for years. Even after her release, she faced restrictions on seeing her children and ongoing threats, including an acid attack suspected to be orchestrated by local authorities. The government’s failure to hold accountable those responsible for her torture underscores a grave injustice and a blatant disregard for human rights. Soni Sori’s harrowing ordeal highlights the urgent need for systemic reform to protect individuals like her from state-sanctioned abuse and ensure accountability for perpetrators of such heinous acts.[9]
CRITICAL ANALYSIS
How effective are these regulations?
There are several legislations on paper, that claim to protect the rights of prisoners in India, however, the ground reality is different. Model Prison Manual of 2016, provides for the making of specific prisons exclusively for women, but, there are only 18 out of 1401 prisons that are exclusively for women.
Numerous female inmates are confined within the women’s sections of general prisons, enduring a hellish existence due to exploitation by male inmates, fellow female inmates, staff, and management personnel at various correctional facilities, as well as by police officials and other authorities who exhibit barbaric arbitrariness toward these vulnerable individuals.
The Model Code for Prison and The Prisons Act, 1894 also provides for the appointment of female staff, and other sanitation and hygiene facilities, however, there is still a lack of female staff; 1 toilet is being used by 10 women, and lack of water at these places makes it hard to maintain sanitation.
Under the Model Prison Code, 2016, it is prescribed that appointed Advocates should regularly visit the prisons and provide legal aid services; members of NHRC and other medical people should also pay regular visits to keep these prisoners in check. However these principles only look good in writing, there is very little practical applicability.
The Children who are living with their mothers are also not provided with proper facilities for their biological, psychological, and social growth. Facilities like creche and recreational activities are not properly provided in every prison. In the name of a balanced and adequate diet for children, they are only given a glass of milk.[10]
AFTERMATH
What can be done further?
Now that the issue at hand has already been highlighted by the Calcutta High Court and the Supreme Court has also taken cognizance of the same, the matter is scheduled for hearing in Calcutta High Court before a criminal bench on Monday, February 12th. The Amicus Curiae, Advocate Tapas Kumar Bhanja has Proposed mainly three suggestions, including:
- Ban of male staff in correctional homes during the presence of female prisoners.
- Betterment of daily life of these prisoners.
- And thirdly pregnancy tests should be done before admitting women prisoners so that any pregnancy that would be found later would be a clear indication of sexual assault.[11]
Adding to this third point of the Amicus Curiae, the author suggests that the three inferences we drew at the beginning of the article would play a major role in curbing such situations.
Firstly, we can keep a separate list for married inmates, and keep track of the scheduled conjugal periods provided to them, so that it would be relatively easy to separate whether the individual got pregnant because of harassment or other reasons such as the right given to her for procreation.
Secondly, if it is claimed, after the complaint comes in front of the authority, that the sex was consensual, the first thing that should be done is to check the mental and physical condition of the female convict, to know whether it was a case of coercive sexual intercourse or not, and even if it was clearly consensual then to lay down guidelines whether it could be allowed, keeping the decorum of these custodial places in mind.
Thirdly, if the case of an individual doesn’t fall under any of the grounds, then it would clearly be a case of sexual assault against the person, which should be strictly dealt with and the victim should not be kept in the same place as their perpetrator.
Some of the other suggestions in general which are drawn from other literature reviews are[12]: –
- Public Oversight of Prisons: National Policy suggests involving eminent public figures to visit prisons and provide independent reports to authorities for constructive feedback and transparency.
- Prisoners’ Panchayat and Grievance Redressal: The National Model Prison Manual advocates for the establishment of a Prisoners’ Panchayat and frequent meetings like Maha panchayat to address prisoners’ concerns and grievances, including specific councils for women prisoners.
- Special Provisions for Pregnant Women: Temporary release of pregnant women prisoners for childbirth outside the jail, suspension of prison terms for casual offenders, and proactive judicial intervention for bail before delivery.
- Improvement in Living Conditions: Enforcement of the Mulla Committee Report’s recommendation for self-contained family units for women prisoners, ensuring better living conditions and facilitating their rehabilitation into society.
- Elimination of Inhumane Prison Practices: Revision of prison laws to eliminate inhumane practices like prohibitions on singing or laughing, criminalizing refusal to eat, and strict footwear regulations.
- Establishment of Grievance Redressal Mechanisms: Implement a Grievance Redress System with complaint boxes for women inmates, review of grievances by committees, and mechanisms for reporting severe allegations like sexual harassment or torture.
- Access to Legal Recourse and Support: Facilitating communication between inmates, their legal advisors, and family members to address frustrations with imprisonment, along with avenues for submitting complaints during visits by authorities.
- Female Representation in Grievance Redressal Committees: Inclusion of high-ranking female police officers in grievance redressal committees to impartially review complaints made by women prisoners.
- Improvement of Basic Amenities: Strict enforcement of state prison manuals to ensure basic privileges for women inmates, including suitable living quarters, bedding, toilets, and adherence to hygiene standards.
- Safety Measures for Female Prisoners: Implementation of strict measures to prevent sexual harassment, including segregation from male prisoners and appropriate search protocols respecting privacy and dignity.
- Alternatives to Physical Searches: Consideration of alternatives to physical and intrusive search methods, such as body screeners and metal detectors, while maintaining safety and health standards.
- Record Keeping and Oversight: Maintenance of written records detailing search procedures and frequency, available for review by official visitors to ensure accountability and transparency.
- Segregation of Under-Trials and Convicts: Separate housing for under-trials and convicts to prevent violent incidents, coupled with discussions on gender concerns and human rights within the prison system.
- Employment of Female Workers: Adequate employment of female workers to handle ferocious incidents, coupled with strict disciplinary measures and consideration of retaliation risks.
CONCLUSION:
In Conclusion, despite having various legal acts, rules, regulations, guidelines, and model prison guides on paper, we are still failing in the implementation part, as the people who are appointed to enforce these laws are the encroachers of these laws and the culprits. To put it very simply, every human despite being on trial, being a convict, or a criminal, deserves a certain level of humane treatment. The biggest problem or the root cause behind these issues is apathy towards these prisoners. Also, as per Professor Crenshaw’s theory of intersectionality, women have to face multiple kinds of harassment, a lot of these prisoners and victims are women which already makes them prone to sexual abuse and if she is from a lower caste as well, it would increase her chances of being subjected to multiple kinds of harassments. Hence all these points should be kept in mind while dealing with such issues.
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Written by- Aditi
[1] Dev, A. (2024, February 9). Prison Staff Regularly Sexually Abuse Women Prisoners – How Can We Address This Issue? Women’s Web. https://www.womensweb.in/2024/02/women-prisoners-are-fair-game-for-sexual-abuse-from-staff-what-can-be-done/
[2] Singh, S. S. (2024, February 8). Women prisoners in custody getting pregnant: amicus curiae tells Calcutta HC. The Hindu. https://www.thehindu.com/news/national/other-states/women-prisoners-in-custody-getting-pregnant-calcutta-hc-prohibits-entry-of-male-employees/article67825476.ece
[3] P., & P. (2024, February 9). Supreme Court takes cognisance of women prisoners getting pregnant in Bengal jails. Deccan Herald. https://www.deccanherald.com/india/west-bengal/sc-takes-cognisance-of-women-prisoners-getting-pregnant-in-jails-in-west-bengal-2888837
[4] Harassment in Indian Prisons. (2021, October 5). Law Insider India. https://www.lawinsider.in/columns/harassment-in-indian-prisons
[5] D.B.M. Patnaik Vs State of Andhra Pradesh, AIR 1974 SC 2092
[6] PRISON REFORMS. (n.d.). Ministry of Health & Family Welfare. Retrieved February 11, 2024, from https://www.mha.gov.in/en/divisionofmha/Women_Safety_Division/prison-reforms
[7] Ibid
[8] Physical Abuse of Women Behind the Bars in India. (n.d.). https://www.legalserviceindia.com/legal/article-7263-physical-abuse-of-women-behind-the-bars-in-india.html#:~:text=Irrespective%20of%20whether%20she%20decides,and%20Redressal)%20Act%2C%202013
[9] Dhawan, & Singh, Dr. (n.d.). SEXUAL HARASSMENT OF WOMEN IN INDIAN PRISONS: A STUDY. BiblioMed.Org.
[10] Dev, A. (2024, February 9). Prison Staff Regularly Sexually Abuse Women Prisoners – How Can We Address This Issue? Women’s Web. https://www.womensweb.in/2024/02/women-prisoners-are-fair-game-for-sexual-abuse-from-staff-what-can-be-done/
[11] Ibid
[12]Dhawan, & Singh, Dr. (n.d.). SEXUAL HARASSMENT OF WOMEN IN INDIAN PRISONS: A STUDY. BiblioMed.Org.
