“Women’s experiences of incarceration are unique and different from men’s, but they are often overlooked in discussions about criminal justice policy and reform. Women are more likely to be incarcerated for non-violent offenses, and many have histories of trauma, poverty, and substance abuse.”
Women, Incarcerated” by Meda Chesney-Lind and Katherine Irwin’s audacious account on the modalities of female incarceration invites the reader to delve into larger questions of the nuance surrounding the subject.
Female incarceration is an area which has not been subjected to a lot of research and emphasis, especially in India. This is largely because women are said to form a very less proportion of prisoners. However, this does not imply that reformation in the prison structures and procedures is not required. According to the Prison Statistics (2021) published by the National Crime Records Bureau(NCRB), there were 1650 women prisoners along with 1867 children as of 31 March 2021. This included 1418 undertrial prisoners, accompanied by 1601 children and 216 convicts accompanied by 246 children. Although women prisoners continue to constitute a minority among prisoners in almost all parts of the world, different statistics show that the rise of the number of female prisoners is faster than the number of male prisoners. Barlow states that women have different needs from men, however, the government concerns itself with the provision of resources to men. It is important to recognise that a gender specific approach is applied to the reformative institutions and the government should provide the necessary tools and assessments to cater to the needs of female prisoners. This article explores the Byculla prison incident which refers to a case of alleged physical and sexual assault of a female inmate by the staff of the Byculla jail in Mumbai, India, in 2017. We analyse a host of problems, including overcrowding, poor hygiene, and inadequate healthcare facilities. Additionally, discrimination, abuse, and neglect from jail staff leading to physical and mental health issues.
Here, it is important to note that prisons usually function as correctional facilities which aim to reduce the level of recidivism among the prisoners. Hence, the facilities provided to the prisoners should be based on their needs, which are usually based on empirical studies and surveys. The larger proportion of male prisoners leads to the ignorance of special needs of women in prisons. Feminist Criminology argues for special needs of female prisoners and usually considers female offenders as ‘female’ first and ‘offenders’ second. It thus draws to attention the abuse histories of female prisoners and poverty as the major reasons due to which women commit crime. This perspective legtimises the importance of special needs for women prisoners and advocates that female prisoners be treated according to their special needs, different from those of men.
Policy review for female prisoners in India
The Criminal Procedure Code (Cr.PC) is intended to establish the necessary mechanisms for crime prevention, the arrest of suspected criminals, the gathering of evidence, the determination of guilt or innocence of the suspected person in a trial, and the imposition of just punishment on the guilty party. Therefore, the purpose of the Criminal Procedure Code is to offer a suitable mechanism and a fair procedure for the enforcement of criminal law. Section 46 of the Cr.PC. was amended for the first time by the addition of a new subsection (4).
This subsection forbids the arrest of a woman unless there are exceptional, unavoidable circumstances that occur after nightfall and before morning. According to Section 53 of the Criminal Procedure Code, a female patient shall only be examined by or under the supervision of a female registered medical officer.
However, jurisdiction within the prison system for women is mostly if not completely arbitrary.
Sheela Barse vs. State of Maharashtra (1983 SC 378) serves as an important precedent when it comes to the rights of female prisoners. In this case, the Supreme Court extended the Right to live with dignity under Article 21 of the Constitution to female prisoners. Moreover, the state was also directed to make provisions for the protection of the rights of women inmates via free legal aid. The Court also recommended that female convicts should have their own lockups, which have to be monitored only by female officers. However, these provisions and recommendations haven’t been substantially useful in ensuring the protection of the rights of women prisoners in particular.
Byculla Prison incident: A Case Study
In India, women constitute a highly vulnerable group, especially in prisons where their mobility and other rights are restricted. The major problems in relation to female prisoners include overcrowding, lack of sanitation and hygiene, inadequacy of prison staff, lack of medical practitioners in prisons, etc. among others. Due to the different biological and psychological needs of women prisoners, there is a need to create different facilities for women in prisons.
A particular incident that highlights the gravity of the situation of women in prisons is the Byculla prison incident. The incident relates to the murder of a female convict, Manjula Shetye who had been appointed as the warder for her prison based on her good behaviour. However, she was often involved in conflicts with the jail authorities due to her stance of standing for the rights of female prisoners. It was reported that on 23 June 2017, she complained of missing food items from the ration of the prisoners which prompted the jail authorities to engage in a larger conflict with Shetye. She was allegedly beaten and raped by the jailors.
When she was taken to the JJ hospital where it was declared that she had been dead almost half an hour before she had been brought to the hospital. On the basis of the statements by the witnesses, this was not the first time that Shetye had faced such brutality and torture, rather she had been subjected to such ill treatment previously as well. The incident was highlighted in the media after a range of protests regarding the murder of Manjula Shetye who was about to complete her term in prison based on her good performance and behaviour.
However, this incident remains to be only one of the incidents of custodial torture highlighted in the media. There have been violations of the rights of female prisoners, them being subjected to a lot of physical and sexual assault, often by the jail authorities on an everyday basis. This particular incident highlights various problems facing the prison system in India, especially with respect to women.
Firstly, one of the major issues prevalent in jails is that of sexual assault, which usually goes unreported. Sexual assault that includes different things such as voyeurism, exhibitionism, sexual harrassment, etc. hinders on the reformative aspects of prisons. It creates an attitude of frustration and aggression among the victims, also leading to mental- health problems. For the victims of prior abuse, this might exacerbate their trauma. A study conducted on the effects of sexual revictimisation presents the linkages between previous victimisation and subsequent revictimisation leading to a constellation of issues regarding women’s mental health and well being. Custodial sexual violence is an issue plaguing the incarceration system further aided by a lack of sympathy towards criminals, rendering internal prison accountability mechanisms ineffective.
The Byculla incident’s Manjula Shetye was pronounced dead after the extent of the violence meted out against her but still met with judicial tardiness and corrupt medical officials who gave fake certificates stating that there were no visible injury marks on her body. This bears further evidence to the fact countless acts of sexual assault, including acts of coerced sex that may appear consensual, have occurred in prisons. Sexual assault and coercion jeopardizes both individual safety and institutional security of the female prisoners. Additionally, the LGBTQ community faces additional discrimination where beyond sexual gratification, power dynamics also come into play making queer inmates more susceptible to assault.
Secondly, the reason for the skirmish in the Byculla incident started with lack of food ration to sustain the prison. Scant portions or withholding food was a daily occurrence by accounts of many prisoners, driving them to steal food and even upstart riots. Most of the food in prison systems are low in nutrition rankings but high in sodium and sugar. This violates Article 21 that through judicial precedents extends the right to live with dignity to prisoners, which includes adequate food, drinking water and accommodation. A 2018 report by the Incarcerated Workers Organizing Committee, has claimed that the inhumane quality of food has led to extreme dehydration, gallstones, cardiovascular disease, and tooth loss due to starvation can all result with rapid and dramatic weight loss, which can also happen.
Another problem in this regard is in relation to the inability of the judicial and administrative authorities to take action against the offenders belonging to the system, usually the prison officers. This can be seen in the long pending case of Soni Sori, a teacher and ethnic tribal activist who was arrested on charges of sedition. As she was arrested and taken to jail, she was subjected to sexual violence by the prison authorities which included the officials of Chhatisgarh police. Although the incident generated a lot of protest in favour of Sori, supported by people such as Prashant Bhushan and Arundhati Roy, no action was taken against the offenders by the judicial or administrative authorities.
This is one of the major issues when it comes to reporting of sexual assault, as due to the fear of not getting justice most of the women choose to remain silent on the violence. The study of prison power dynamics becomes important here. Danielle Dirks argues that the structural distinction between those in power (prison staff and prison administration) and those without power (prison inmates) serves as a “constant reminder to women in prison that they do not have autonomy over their own bodies or well being in prison” which again establishes a sense of powerlessness among the women prisoners. As reported by Human Rights Watch (1996), prison officer’s absolute power over the inmates might propagate the development of exploitative relationships based on favour giving and avoiding punishments.
Moreover, another issue highlighted by the Byculla jail incident is the lack of medical practitioners in prisons. This is a serious problem considering the special healthcare needs of women in prisons. The services of specialists, particularly gynecologists are not available in prisons. Also, due to the unavailability of medical practitioners, the inmates are taken to government hospitals nearby, escorted by the civil police. The police personnels are also required to escort the inmates to courts. This leads to a delay in the provision of medical services to the prisoners, especially due to lack of staff. Moreover, the importance of providing proper healthcare to female prisoners becomes more important when the psychological stresses of imprisonment due to separation from families, loss of control of their own lives and living in cramped prisons is considered.
Lastly, an important issue to reflect upon has been the lack of transparent and efficient redressal mechanisms for female prisoners. This is seen mainly through the lack of easily accessible legal aid for women. Despite the provision of mandated free legal aid, the piling number of cases and lack of awareness on the victim’s behalf as well as the lack of initiative by the executive authorities, has led to a major shirking of responsibility.
There is also a serious shortage of prison staff which is particularly detrimental to the supervision of women prisons. According to the National Prison Manual, 2016, there must be one guarding staff for every six prisoners. However, this remains to be far from reality where prison administration faces a shortage of staff in almost every jail of the country. As of 2015, there were 4,391 women jail officers/ staff which was only 8.28 per cent of the total. There is also a dearth of female officers at supervisory levels. Due to the shortage of female officers, male staff is generally required to supervise women prisons, which is seen as highly undesirable. In such circumstances, the special needs of women prisoners are ignored and they are subjected to unnecessary scrutiny as well.
The Way Forward
The issues discussed above present an agitated picture of the situation of women prisoners. As the incidents of crimes against women prisoners increase, the need for statutory provisions dealing with such incidences becomes more and more important. This starts with recognising the difference in treatment between different genders and the need for gendered laws in an arbitrary, murky section of law.
An important step in this regard can be the ratification of the United Nations Convention on torture. India signed the convention on 14 October 1997, however it has not been ratified yet. The ratification might lead to India legislating on the definition of ‘torture’ and the provisons regarding prevention of torture, especially against women prisoners.
Nutrition is another area where separate provisions need to be framed. Women prisoners are usually provided less diet based on the justification that women require low calorie intake. This leads to women not getting proper diet which serves as an impediment on their health. Regular inspections by agencies such as National Human Rights Commission (NHRC) might lead to better provision of nutrition and other healthcare needs.
There is also a need for recruitment of more female officers in the prison correctional services. The lack of women as prison officers presents undesirable situations for women prisoners. Also, there should be regular evaluation of the performance and conduct of prison officers in order to incentivise them for good conduct with the prison inmates. The development of awareness among women prisoners regarding their rights is an important step that needs to be taken by the prison authorities. A consciousness among the women prisoners needs to be developed so that the crimes against women prisoners can be reported and necessary steps can be taken. Different non- governmental organisations can also take the initiatives for providing necessary knowledge about the rights of the women prisoners. The development of a proper redressal mechanism is also a key step that needs to be taken on the behalf of prison authorities.
It is imperative that we prioritize the restructuring of female incarceration to ensure that women are treated with dignity and respect, given access to necessary resources and support, and ultimately given the opportunity to successfully reintegrate into society.
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About the Authors:
The blog is written by Shreya Ganguly and Jahnvi Jangra. The authors are undergraduate students, pursuing B.A (Hons.) Political Science from Lady Shri Ram College for Women, Delhi University.