In a judgement last month, the Supreme Court expressed discontent over the lacunas in the administration of death in India. Pursuant to a report by Justice SK Panigrahi which revealed that the toilets in prisons of Odisha were not fit for human usage and the food being provided was not fit for human consumption, the high court pulled up the state government to take steps towards improving the living conditions of inmates. In yet another case, the Jammu and Kashmir High Court set out to rectify the problem of overcrowding in prisons.
It is clear from these repetitive judicial interventions that the prison administration system in India is broken and requires some fixing. But whether the road to reform is common for male and female inmates is a question that is rarely asked. But this question needs to be asked because women inmates face double marginalisation both inside and outside of prisons.
First strand of marginalisation
The treatment of women in Indian society is riddled with irony. Religiously, traditionally, and mythologically, women are theoretically perceived as goddesses and harbingers of prosperity. Yet, deeply entrenched misogyny and patriarchy have resulted in them being treated as outcastes.
Prisons are no different from the real world in terms of the challenges faced by women. The stigma around being a woman is in fact much heightened for the women inmates as criminality is seen as deviance from womanhood. Resultantly, the women who are either accused of a crime or are convicted are seen as deviant, evil and, even unwoman. Women are not only held accountable against the law but also against societal morality, thereby eliminating the possibility of their re-integration into the society.
It is pursuant to these stereotypes around women, a lot of criminal law theorists have tried explaining female criminality using predetermined psychological and biological theories.
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Some scholars argue that women are less evolved than men and thus, female criminality is a result of biological inferiority. And this causes women offenders to deviate from ‘woman-ness’. Others like Ceasre Lombroso argue that crime is associated with anger and aggression. Men possess that aggression by virtue of their hormones. Thus, women exhibiting criminal behaviour “are not only abnormal, they are biologically like men”. Katherina Dalton argues that premenstrual syndrome (PMS) is a biological problem that causes women to be irrational, unstable, and even criminal.
Other theories have associated women’s criminality to ‘acting out’. While reiterating that women are passive beings determined to be motherly and wifely, these theories propound that certain women who are under-socialised are vulnerable to be manipulated by men and may ‘act out’ as a consequence of unsound socialisation.
However, all these theories are unscientific, as female criminality is just the same as male criminality. It can be induced by systemic issues ranging from abuse to poverty and deprivation to want. These contexts affect both men and women alike but these theories do not account for such issues.
Nevertheless, these patriarchal assumptions regarding female criminality result in double vilification of women offenders and foreclose their way to reform and rehabilitation. More importantly, it snatches women from their right to be layered and complex human beings.
Second strand of marginalisation
As per NCRB data, women constitute merely 4.16 percent of the prison population. Nancy Loucks argues that “the small proportion of women in custody inevitably means that custodial culture is dominated by the needs of men. Programmes and activities in prisons are often designed with the needs and interests of male prisoners in mind”.
Due to the lesser number of women prisoners, there are fewer facilities to hold women inmates. Till the end of 2018, there were just 24 prisons for women. Thus, a lot of women prisoners are held in locations that are far away from their hometowns and families. Close to 84 per cent women prisoners in India are hauled up in small enclosures in general prisons which naturally lack the infrastructure required to cater to the specific needs of women.
A study has found that more than a thousand women are jailed in spaces meant for only 150 people and are given just one bar of soap to bathe and wash their clothes and utensils for one whole month. Another report reveals that the majority of women inmates in Punjab are not even provided basic sleeping arrangements forcing them to sleep on the floor.
As women are the primary caregivers to children, often women inmates have to keep their children with them. More than 1,500 women prisoners in India live with their children inside the prisons. Despite this, the basic requirements for proper development and education of the child, or creche and other such facilities are often not available in Indian prisons.
There is a scarcity of female jail staff and supervisory officers in Indian prisons. As of 2015, women jail staff/officers constituted only 8.28 per cent of the total jail staff. Resultantly, male staff and officials often become responsible for the affairs of women prisoners which is undesirable and makes women more vulnerable to harassment and assault. Additionally, prison staff and officials are inadequately sensitized and trained to cater to the needs that are specific to women. Besides this, there is also a shortage of specific medical officers like psychologists and gynecologists in prisons.
Women inmates are humiliated and violated during body search and screening at the time of admission. They are treated as degenerates and their comfort and privacy is disregarded. They are often subjected to sexual violence by fellow inmates as well as authorities. Cases related to recording women prisoners without their consent have also been reported. The National Human Rights Commission of India recorded 39 rape cases in judicial and police custody in just five years from 2006 to 2010.
All this shows that female criminality is viewed differently from male criminality and the latter is considered more deplorable. Whilst, the treatment of women inside prisons is just the same as men and it fails to address the special systemic challenges faced by women.
Thus, while courts tread upon the road to reforming Indian prisons, they ought to acknowledge that these roads are different for male and female inmates.
Towards this end, alternatives to imprisonment which include community service, shelter housing, rehabilitation facilities and other non-custodial schemes should be prioritised while sentencing women offenders. The stigma around female offending and incarceration which forecloses the option of rehabilitation and reintegration for them, also calls for a differential sentencing for women.
Even inside the prisons, women should be able to enjoy certain differential facilities. Lactating and pregnant women should be provided a special diet. Mothers living with children inside the prisons should be given a separate food allowance for the children instead of being forced to share her food with the child. Lastly, since a lot of women prisoners are left in the lurch upon release, special support programmes should be established to look after their financial and residential needs.
It is only when we acknowledge this double marginalisation of women and address it differentially, that we will be able to bring a gender-sensitive prison reform. Such a prison reform is imperative because it is human to sin for women as it is for men and they do not deserve a harsher punishment for being women.
The author is V Year, BA., LLB. (Hons.), NLSIU, Bangalore. Views expressed are personal
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