As we all have learnt in school that the Constitution of India defines the powers and specifies their respective allocations and duties between the Union and the states via three lists, these are
- the Union List,
- the State List,
- the Concurrent List.
One can find this demarcation in the seventh schedule to the Constitution. Coming to the topic of Prisons and its administrations, this topic falls under the State List in the Constitution and hence respective states have their own features. In the different States and UTs of India, there are different tiers of prison establishments. These include the
- Central Jail,
- district jails,
- sub jails as well as women jails,
- borstal schools,
- open jails
- and special jails
The ideology behind prisons in India is more reformatory than punitive. A prison is viewed to be a retributive facility where individuals who have broken the law can correct themselves. But on the contrary, prisons in India are in terrible shape today which becomes detrimental for the inmates. Prisoners are also human and it is very important to uphold the values of our nation and its Constitution by recognising their basic rights and seeing to it that they are fulfilled.
When it comes to women prisoners, the condition is pathetic. Prison systems historically have always been built keeping in mind the males, which is why they are not equipped to cater to the needs of women inmates. As per a study in 2015, data revealed that 17,834 women were prisoners, but what was shocking was that only 17% of these women lived in female prisons which were exclusive to address their needs.1 The rest of the women were housed in the female units of general prisons. Among pregnant prisoners in India, 50.5% of them fall under the age category of 30-50 years. 31.3% of these fall under the category of 18-30 years, which is the most likely time for a woman to be pregnant. If such a huge population of female prisoners is so likely to be pregnant, it is extremely necessary that we make our prisons more habitable for them. There are approximately 1401 prisons in India, but only a mere 18 prisons are exclusive prisons for women. These 18 prisons house 2985 female inmates which mean that the rest of the women prisoners have to be accommodated in general prisons’ women’s wings.2
There has been a lot of conversation going around not only nationally, but also on international platforms with regards to the need for improvement of women prisoners.
The fundamental problems for women in prisons revolve around the lack of female staff like -:
- female doctors,
- nurses, etc.
Other problems fall on the lines of inadequate accommodation and major overcrowding. Lack of proper sanitation due to lack of toilets and bathrooms is also concerning. Shortage of water and ignorance of menstrual hygiene only further exacerbates this problem.
A certain section of women prisoners has to suffer a lot more. This is the section of pregnant prisoners. It is high time that the rights of women prisoners are taken into account. The most vital aspect for survival is nutrition but today we can observe that the health of pregnant and lactating women is not favourable because of inadequate nutrition. Pregnant women are supposed to be given a special diet but most prisons do not practise this.
Rights of Pregnant Prisoners:
The Ministry of Home Affairs had issued a Guideline for Children of Women Prisoners. Under the report, there is a mention of a research study conducted by The National Institute of Criminology and Forensic Sciences on children of women prisoners in Indian jails. After referring to the affidavits by various States and UTs, and the Centre, certain guidelines were promulgated for pregnant prisoners.3
The National Prison Manual is the authority governing prisons and their administration. As per the National Prison Manual of 2016, there are provisions made for pregnant prisoners.
- It was learnt that the concerned authorities need to ensure that when they are sending a pregnant woman to jail, the prison must have the essential facilities for delivering a child and also providing pre-natal and post-natal care for the prisoner and her child.
- It is the duty of the lady Medical Officer to report to the superintendent if she suspects that the prisoner is pregnant when she was admitted to the jail or even thereafter.
- After finding of the pregnancy of a prisoner, the prisoner should be medically examined at the female wing of the hospital of the district government. The duration of pregnancy, the health of the prisoner and the probable date of delivery should be ascertained during this arrangement, and a report on the same should be sent to the Inspector General of Prisons which shall include the details about the admission, sentence, and release of the prisoner too.4
- It is the right of the expecting prisoner to have parole or temporary release to deliver her child outside the prison unless there is a high-security risk, in which case parole can be denied.
- If the pregnant prisoner is a minor or a casual offender, then there can be a suspension of sentence.
- It is the right of the pregnant prisoner to register the birth at a local registration office. It is also the right of the pregnant prisoner that there should be no record of the child being born in prison in his/her birth certificate. Only the locality address can be mentioned. This provision is to ensure that the child is protected from social stigma.
- It is the right of pregnant prisoners to keep their children, until they turn six years old, with them in prison
- It is the right of pregnant prisoners to receive food with nutritional ingredients to cater to the health of their children and themselves.
- Pregnant prisoners are also to be provided with separate utensils of appropriate sizes and materials so they can feed their children. They are also to be provided with bedsheets and clothes for children.
- There should be arrangements for formal and informal education for such children in prison and arrangements for recreation and leisure.5
- The report of a prisoner’s pregnancy must be given to the Court that has ordered the sentence. The Court, if deems necessary, can then grant appropriate bail or modify the detention of the pregnant prisoner.
- Pregnant prisoners, who have delivered, are to be accommodated separately from dangerous convicts who pose a threat. The separate accommodation is also to ensure hygiene and that the new-born is protected from and contagion.
- It is also the right of pregnant prisoners that mechanisms of restraint are not used on them and they are not to be punished by close confinement
- It is the right of pregnant prisoners to have free access to urine pregnancy test kits whenever they require.
- It is the right of pregnant prisoners to be informed about legal abortion practices during incarceration and they should have access to this option.
- It is the right of the pregnant prisoners to decide whether they want to work during their pregnancy or even in the post-natal period. The work they choose should not be detrimental to their health conditions.
- Pregnant prisoners are still considered to be citizens of India and hence it is their right to get an AADHAR card made for them and their children so that they benefit from the various welfare schemes made by the government.6
- Pregnant prisoners have the right to not be punished with a death sentence until their delivery.7
- Pregnant prisoners also need to be educated about child-rearing and other crafts relating to motherhood
- According to the National Expert Committee on Women Prisoners 1987, pregnant prisoners’ needs have to be catered to by giving them special consideration. Therefore, their medical and nutritional needs need to be prioritised. 8
Now some of you may be wondering as to whether this special consideration of pregnant prisoners is in favour of the law of the land or not. The Constitution of India which is the highest law of the land has Article 14 which ensures Equality before the law, under which it is ingrained that like should be treated in an alike manner. The provision of reasonable classification is also laid down in Article 14 wherein on the basis of intelligible differentia there can be a positive discrimination. This is exactly why India has a reservation for SCs, STs, and OBCs so that they can ensure the welfare of the downtrodden. One of the ideas mentioned in the Preamble to our Constitution is that of social welfare. Similarly, for the welfare of pregnant prisoners who are carrying the future of this country, there can be reasonable classification.
There is also Article 15 which prohibits discrimination on the basis of religion, race, caste, sex or place of birth. But on the same hand, Article 15(3) talks about that nothing in Article 15 should prevent the State from making special provisions for women and children. So if these provisions are being made pregnant prisoners, they are made to ensure the welfare of women and children.
Moving on to Article 21 of the Constitution of India which talks about the right to life and liberty, it also has been the epicentre for several litigations due to its broad scope of comprehension. In the landmark case of Maneka Gandhi vs Union Of India on 25 January, 19789, the Court has broadened the scope to grant positive rights. So there is also an extent of corollary obligations to the prisoners. 10
The Ministry of Women and Child Development Government of India published a report called “Women in Prisons” in June 2018. There are a few recommendations to ensure that pregnant prisoners’ interests are safeguarded in the country. Even though they are under sentence, that does not mean they be deprived of their basic rights.
The Mulla Committee has recommended that a National Commission for Prisons should be established. This commission will be responsible to provide an overall national perspective on prisons in the country. The National Commission for Prisons will be a central body responsible for looking after the prisons specifically with great attention.
Even though the government has come up with provision for pregnant prisoners, they are barely implemented in prisons. To curb this non-confirmation, there should be thorough and regular inspections from time to time of prison to ensure that the regulations and provisions are being abided by. Each inspection should have a report of the particular prison and these reports must be shared with government agencies so they can have a look at the conditions and come up with respective solutions for the same.
Since it can be seen that provisions are not being implemented, there should be an establishment of a grievance redress mechanism in prisons wherein prisoners whose rights are being violated can approach the concerned authorities who will act impartially to address their problems. A two-tiered and robust structure should be in place for grievance redress, one in the prison and one external authority to regulate the procedure.11
The aforementioned report also states that there is an international agreement with regards to the dismal condition of women prisoners which needs to be improved. The report mentions that the UN General Assembly, in 2011 adopted the Bangkok Rules.12 The Bangkok Rules outline the rules as to the treatment of women prisoners. Following are some of the rules that can be adopted by our government to administer welfare for pregnant prisoners.
- Rule 5 says that women’s hygiene needs to be facilitated and sanitary napkins should be provided free of cost. There should be a regular water supply for personal care of pregnant women and children.
- Rule 8 says that women prisoners have a right to medical confidentiality, and any details of their reports of medical tests cannot be shared because the sexual history of the woman should be respected.
- Rule 22 says that pregnant prisoners have the right to not be in close confinement or solitary confinement or any such punishment of disciplinary segregation in prison to avoid any health complications. This rule also applies to women with children in prison to safeguard the interests of children by not separating them from their mothers, in line with the Convention on the Rights of the Child.
- Rule 24 says that restraining devices should not be used on pregnant prisoners even while they are being transferred to hospitals from prison to prevent health hazards like haemorrhage or decreasing foetal heart rate as a result of shackling the prisoner. Shackling pregnant prisoners to beds during gynaecological tests is also a degrading practice which is utterly inhumane. Therefore other methods of security need to be devised.
- Rule 39 says that pregnant prisoners who are juvenile have the right to medical care just like their adult counterparts. Since juvenile pregnant prisoners are more prone to health and pregnancy complications due to their age, they have the right to be monitored by a medical specialist. Such prisoners are also supposed to undergo therapy and counselling since they are the most vulnerable to social stigmatization. They are inexperienced in dealing with this and should receive adequate support.
- Rule 48 says that those prisoners who have delivered the child but the child is not living with them in prison are still entitled to the post-natal medical and nutritional care required.
- Rule 49 says that pregnant prisoners have the right to decide whether the child will stay with them in prison or not depending upon the best interests of the child. If the prisoner decides to keep the child with her in prison, it is absolutely important that the child should not be treated as a prisoner, ever.
- Rule 50 says that prisoners with children in prison with them are to be provided with the maximum possible opportunities to spend time with their children.
The Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders has determined that “the use of imprisonment for certain categories of offenders, such as pregnant women or mothers with infants or small children, should be restricted and a special effort made to avoid the extended use of imprisonment as a sanction for these categories.”13
The African Charter on the Rights and Welfare of the Child, 1999, Article 30: Children of Imprisoned Mothers, mentions that States who are Parties to the Charter should try to offer special treatment to pregnant prisoners or prisoners with children. Such women can be given a non-custodial sentence.
The Council of Europe, Parliamentary Assembly Recommendation 1469 (2000), on Mothers and babies in prison, adopted on 30 June 2000, has recommended that for pregnant women and women with children under trial, it should be tried that they are given community-based penalties so that prison custody can be avoided. 14
- R.D. Upadhyaya vs State of Andhra Pradesh & Ors (Civil Writ Petition No. 559 of 1994)
- Rights of women prisoners in India, International Journal of Academic Research and Development, ISSN: 2455-4197, Volume 2; Issue 6; November 2017; Page No. 677-679
- Maneka Gandhi vs Union Of India on 25 January, 1978 AIR 597, 1978 SCR (2) 621
- UN General Assembly adopted Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) in 2010 (Available at: https://www.unodc.org/documents/justice-and-prisonreform/Bangkok_Rules_ENG_22032015.pdf)
- Eight UN Congress on the Prevention of Crime and the Treatment of Offenders, Resolution 19 “Management of criminal justice and development of sentencing policies”, Report of the 8th UN Congress on the Prevention of Crime and Treatment of Offenders, 1990, UN Doc. A/CONF.144/28/Rev.1.
- UN General Assembly adopted Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) in 2010 (Available at: https://www.unodc.org/documents/justice-and-prisonreform/Bangkok_Rules_ENG_22032015.pdf )
Student, Kirit P Mehta School of Law, NMIMS Mumbai
Virali is an enthusiastic law student who has big ambitions, and a bigger spirit to always keep learning. She is exploring her interests in the field of law and feels strongly for women’s issues. For any Clarifications, feedback, and suggestion, you can reach her at firstname.lastname@example.org