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A Legal Analysis Of Rights Of Female Prisoners Under Constitution Of India

It is said that no one truly knows a nation until one has been inside the jails. A nation should not be judged by how it treats its highest citizens, but how it’s lowest ones-Nelson Mandela

Every person in the society is born with equality and they are endowed by their creator with similar basic rights. These rights form the basis of every human being that is the rights of life and liberty which have been recognised by various Constitutions of the world, but in every society, there are some people who don’t follow the ethics and standards of society then that person is deprived of these rights with proper punishment. If there is a Society without crime, it is a Utopian theory. The Indian struggle has played the most crucial role in identifying the rights of prisoners.

If a person commits any crime he does not ceases to be a human being, thus all fundamental rights are enforceable in reality, though they are restricted by the fact of imprisonment or fine or with both. The main aim of the criminal justice system is that if a person is ones a criminal, it does not mean that he is always a criminal for his lifetime. There is a famous quote –

Hate the crime and not the Criminal - -Mahatma Gandhi

According to the State list every state has to achieve the goal of protecting the society from the convict and also to reform the offender. Thus, under Constitution of India, the Supreme Court has interpreted various fundamental rights for the benefits of prisoners such as- Article 14, 19, 21, 22, 32, 37, 39A, 226.

Literature Review
In India the status of women prisoners is a problematic situation as the women in the prisoners are either under trial or convicted which leads to lots of issues like- the Overcrowding of Prisons and due to lack of funds the women are provided with proper sanitation facilities, as the number of prisoners are more there is no adequate staff members in the prisoners which causes lots of trouble in the prisons, rising to conflicts, poor management in the prisons, etc. There are certain cases which reflected that due to poor security in the prison system there has been the occurrence of custodial rapes.

Thus, the following are some of the problems which are faced by female prisoners:
  • Poor living Accommodations or Overcrowding of Prisons.
  • Lacks with basic facilities of sanitation and hygiene.
  • Poor spending on health care and welfare.
  • Problem of Women Prisoners in India- custodial rape

This research paper seeks to study the conditions of women prisoners and provides the area for improvement to resolve the same possible errors and it also deals with the problems which are faced by the female prisoners and talk about the rights of prisoners mentioned under the constitution of India were through judicial interpretation these rights are recognised under the head of Prisoners Rights.

This article also provides proper recommendations and suggestions in improving the prison administration of the country with keeping in mind that women prisoners should be handled with proper care and seeking that there are no physical, psychological and emotional threats to them in the prisons.

Research Question
In International Scenario, there are several studies done by various great authors which contributed their views in terms of understanding the female criminality. The major contribution includes Lombroso in terms of understanding the biological factors, Ferrero in understanding psychological factors, Thomas, Pollak[1] who has greatly emphasized in understanding the female criminology. Thomas William and Christoper have extensively analysed on the criminality of women in sociological aspects.

In the Indian scenario, there is very less importance given to women and crime in terms of understanding the female criminology as well as there is very less focus given to specifically understand the problems of women prisoners. But there are certain authors who took great efforts in understanding the female criminality, the first attempt was done by Sharma who conducted the sociological research on women offenders from Uttar Pradesh three decades ago, later on, the various research was conducted by Sohoni Bhanot, Mishra, Singh who furnished the statistical analysis to understand the nature, extents and patterns of women criminality.

Pachauri was the first who conducted the research in understanding the status of women prisoners which reflected the training and treatment of women prisoners in Indian Jails. Mridul Manyavar made an attempt in focussing to understand the lifestyles of women criminals and suggested the therapeutic approaches which were used as the tool for reformation in prisoners in India which greatly impacted in developing the status of women prisoners.

There are very fewer articles and researches which focussed on the issues of women prisoners. There are circumstances were under the classification of prisoners are made in terms of under trial, convicted and where there are situations when children are born or sometimes the women are imprisoned when they have a very young child at home where there is a need that the children with respect to certain age criteria should be kept with their mother for proper care and for the normal growth and development of the child. These are certain reformation which are taken into account in Prison Manual and which have impacted a lot in the country.

Research Objectives

This Research Paper aims at understanding the following points:
  • What are the problems faced by women prisoners?
  • What are the various constitutional rights to the prisoners in India?
  • What are the improvements need to be done in the existing situation of women prisoners?

Research Methodology

The research paper has been made in keeping mind the following research objectives:
  1. To identify the problems faced by the Female Prisoners in India.
  2. To understand various Rights of the Prisoners.
  3. To understand Judicial creativity in protecting the rights of prisoners.

The researcher has used the following tools and techniques for collecting the data for research:
  1. Content Analysis- Researcher has referred various manuals and reports regarding understanding prison functioning in terms of its environment, Conditions of the prisoners, facilities provided to prisoners both male and female.
  2. Referred to some of the journals where there was the research conducted on the Prisoners in terms of understanding the prison administration
  3. National Crime Records Bureau (NCRB) reports.
  4. Case Studies in understanding the judicial interpretation of prisoners’ rights, etc.

The study has further taken into account the usage of secondary data which is shared by Ministry of Home Affairs, data published by the National Crime Records Bureau, Bureau of Police Research and Development, National Human Rights Commission, various central level committees set up to review prison conditions as well as orders/judgments of the Hon’ble Supreme Court.

Problems Faced By Female Prisoners

In 2016, over 3 Lakhs of women prisoners were arrested under the Indian Penal Code and Special Laws, most of the female prisoners were between the age group of 30-50 years which constituted the 50.5% of the proportion, followed by the age of 18-30 years which constituted the 31.3% of the total of 1401 female prisoners.[2]

Though the topic of prison forms a very sensitive issue in all nations across the world, the administration of prisons differs from nations to nations. In every state, there is a manual in terms of dealing with the rights and duties of prisoners which should be introduced to the prisoners at the time of their admission in the prison.

This section deals with understanding the particular problems faced by women in prison:
  • Poor living Accommodations or Overcrowding of Prisons.
  • Lacks with basic facilities of sanitation and hygiene.
  • Poor spending on health care and welfare.
  • Problem of Women Prisoners in India- custodial rape.

A. Poor Living Accommodations or Overcrowding of Prisons:
· This is one of the most severe problems faced in Indian prisons both to the male and female prisoners. In prisons, a specified size for cells and barracks is provided according to the guidelines of the National Prison Manual. Barracks are ideally only for 20 prisoners and dormitories to house only four to six prisoners each. Overcrowding has worsened hygiene conditions and health problems with even minor infections spreading quickly. The disproportionately low number of toilets and bathrooms exacerbate the situation. Overcrowding also has severe psychological effects on prisoners forced to live in such close quarters with one another.
  • Although convicted and under trial, prisoners are to be housed separately on conviction, this is usually not possible due to severe space constraints.
  • Young offenders (18-21 years of age) must also be kept separately, mostly they are found with the older women offenders leading to make them the habitual offenders. Overcrowding in prisons also leads to children of prisoners having to live in cramped and undesirable conditions.

B. Lacks basic facilities of sanitation and hygiene:
In India, most of the female prisoner’s age from the age group of 18-50 was a large majority that is 81.8% female’s falls under the menstruating age group where there is an increasing need to provide proper sanitation facilities as well as access to adequate menstrual hygiene products. As they should be provided with proper sanitary pads to maintain their hygiene but it is reported that they charged for sanitary napkins in some prisons or are only provided a set monthly number irrespective of need. Thus, this leads women to resort to using unhygienic materials such as cloth, ash, pieces of old mattresses, newspapers etc.

C. Poor spending on Health care and welfare:
In India, an average of Rs.10,800 per inmate per year was spent by prison authorities during the year of 2005, distributed under the heads of food, clothing, medical expenses, vocational & educational, welfare activities and others (National Crime Records Bureau 2005)

This is in contrast to the US, where the average annual operating cost per state inmate in 2001 was $ 22,650 (the latter presumably also includes salaries of prison staff). The maximum expenditure is on food in Indian prisons.

The States like- West Bengal, Punjab, Madhya Pradesh, Uttar Pradesh, Bihar and Delhi reported relatively higher spending on medical expenses during that year, while in Bihar, Karnataka and West Bengal reported relatively higher spending on vocational and educational activities. Tamil Nadu, Orissa and Chhattisgarh reported as it is relatively higher spending on welfare activities regarding with the prison[3].

D. The problem of Women Prisoners in India- custodial rape:
In the case of State of Maharashtra vs. C.K.Jain[4], there was rape in police custody. Regarding evidence, the Supreme Court emphasized that in such cases unless the testimony of the prosecution was unreliable, collaboration normally should not be insisted upon. Secondly, the presumption is to be made that ordinarily, no woman would make a false allegation of rape. Thirdly, delay in the making of the complaint is not fatal and quite understandable reasons exist for the delay on the part of the victim woman in making a complaint against the police. As far as the sentence was concerned there was no room for leniency, the punishment must be exemplary.

Analysis Of Judicial Interpretation

The Judiciary has interpreted various rights as the Rights of Prisoners which are mentioned below-
Rights of Prisoners recognised under Constitution of India: A convicted prisoner is not barred by his fundamental rights though he truly not enjoys all the fundamental rights like other common men some of the fundamental rights are recognised for the prisoners as a basis of human rights. Constitution of India has not clearly mentioned the rights for prisoners but through judicial interpretation, they are recognized through precedents, as in the leading case of T.V. Vatheeswaran v. State of Tamil Nadu[5], it was held that the Articles 14, 19 and 21 are available to the prisoners as well as to the common man.

Article 14 of the Constitution of India acts as a torchbearer for the prison authorities and its administration to determine various segregations of prisoners and their object of reformation.[6]
Article 19 of the Constitution of India guarantees six freedoms to all citizens of India. There are certain rights which are not for the prisoners but among those freedoms, the freedom of speech and expression[7]and freedom to become a member of an association is there for the prisoners.

Article 21: Today, the judiciary, by its art of interpretation, has discovered a variety of rights of suspects, accused persons and prisoners, who are in police custody. The fundamental right of 'life and personal liberty' has been interpreted by the Supreme Court of India in a broad spirit and various rights have been included in the ambit of Article 21 of the Constitution.

Article 21 of the Constitution of India focuses on two crucial concepts i.e., right to life and principle of liberty. In the cases like- Maneka Gandhi, Sunil Batra (I), M.H.Hoskot, the Supreme Court has taken the view that the provisions of part III of Constitution of India there needs to be a widest possible interpretation.

It was held that:
  • Right to legal aid[8],
  • Right to speedy trial[9],
  • Right to have an interview with a friend, relative and lawyer[10],
  • Right to live with human dignity,
  • Right to livelihood,
  • Right of inmates of protective homes[11], etc.
Though these rights are specifically not mentioned as fundamental rights under article 21 of the constitution with the help of judicial creativity they are recognised as the Rights of Prisoners.

Following are the rights which are guaranteed to the prisoners under the Indian Constitution though Judicial Interpretation:
  1. Right to Free Legal Aid: It also means to provide Financial Aid to a person in a matter of legal disputes. The Constitution 42nd Amendment Act, 1976 has inserted Free Legal Aid as one of the Directive Principles of State Policy under Article 39A in the Constitution. The Indian Constitution does not expressly provide the Right to Legal Aid. But the judiciary has shown its favour towards poor prisoners those who are not in a position to engage the lawyers of their own choice because of their poverty.

    In M.H. Hoskot v. State of Maharashtra[12] the Supreme Court laid down that right to free legal aid at the cost to the state to an accused who could not afford legal services for the reason of poverty, indigence situation was part of fair, just and reasonable procedures implicit in Article 21. a three Judges Bench (V.R.Krishna Iyer, D.A.Desai and O.Chinnappa Reddy, JJ) of the Supreme Court reading Articles 21 and 39-A, along with Article 142 and Section 304 of Cr.PC together declared that the Government is under a duty to provide legal services to the accused persons.
  2. Right to have Interview with Friends, Relatives and Lawyers: In Sheela Barse v. State of Maharashtra[13], the court held that interviews of the prisoners become necessary as otherwise the correct information may not be collected but such access has got to be controlled and regulated.

    In Dharambir v. State of U.P[14] the court directed the State Government to allow family members to visit the prisoners and for the prisoners, at least once a year, to visit their families, under guarded conditions.
  3. Rights against Inhuman Treatment: Human Rights are part and parcel of Human Dignity. The Supreme Court of India in several cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate directions to the concerned authorities for safeguarding the rights of the prisoners. The Court observed that the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14.
In the case of Christian Community Welfare Council of India vs. Government of Maharashtra[15], it was held by the Bombay High Court that woman should not be arrested after sunset and before sunrise and only in the presence of lady constables. The Court directed the State Government to set up a Committee to formulate a comprehensive scheme for police accountability to human rights abuse and make special provisions for female detainees. This Right plays an important role in protecting the female prisoners from any sexual harassment and unforeseeable tortures.

Therefore, apart from these according to Mulla Committee following are also the list of rights of prisoners which include:
  • Right to human dignity,
  • Right to basic minimum needs such as drinking water, hygiene, medical care, clothing, bedding etc.,
  • Right to communication with the outside world,
  • Right to access to law, Right to meaningful and gainful employment and so on.

A car needs four wheels to run, a human needs two legs to walk and a democratic nation like India needs three independent organs – legislative, executive and judiciary to maintain the balance between distributions of powers. This not only helps to divide the work for better Efficiency but also ensures a continuous process of checks and balance. It is well known legal and management principle, responsibility and accountability need to operate together for Better results. This principle should also be applicable to the prison authorities.

The prison is supposed to be a place meant for a reformatory purpose. However, the entire Purpose fails when the prisoners are denied the very rights that are fundamental to their being a human being. A few decades ago, prisoners were looked down upon and were considered to have forsaken all their rights. However, modern society recognizes the rights of a prisoner. Hence, a conviction for a crime does not reduce the person into a non-person, whose rights are subject to the whim of the prison administration and authorities.

It is the need of the hour that we take positive steps to ensure that the basic human rights of prisoners are not infringed and that they live with dignity because human beings denying other human their basic rights does nothing but taking us right back to the era of cannibalism and war. To improve prison status it does not mean that prison life should be made easy, it means, it should be made humane and sensible. The functioning of judiciary reveals that it has exercised its powers in the most creative manner and devised new strategies to ensure the protection of Human Rights of the prisoners.

Thus, mere words on a paper have never been enough. It is time that laws are implemented and given the chance to fulfil its purpose– a peaceful society of equals.

There are various committees which have given several recommendations were one of National Expert Committee on Women Prisoners which runs under the chairpersonship of Justice Krishna Iyer appraised the situation of women in jails and made various recommendations.
Some of the important recommendations include:
  • Women prisoners should be informed of their rights under the law.
  • Only women constables should conduct searches on women prisoners.
  • Women doctors should do a medical check-up of women prisoners as soon as they are admitted to prison.
  • Women prisoners should be allowed to contact their families and communicate with their lawyers, social workers and voluntary organizations.
  • Women prisoners should be allowed to keep their children with them with a proper age restriction.
  • Women should be provided with proper hygiene products like- sanitary pads, more number of clothes such that their health is taken care of and thus it would help to protect their health.
  • Special prosecution officers should be available to present the case of women prisoners.

Apart from the above-mentioned recommendation, there are some recommendations which are highlighted in this research paper which is as follows:
  1. The prisoners should be allowed to meet their parents, relatives such that this will help in his rehabilitation and after their release were they can face the outside world courageously casting aside the stigma attached to them on account of precognition. The periodical furlough granted to prisoners in India under the Prisons Act and the rules framed thereunder are intended to achieve this objective.
  2. The women prisoners should be treated more freely and allowed to meet their children frequently. Particularly, the women who fall prey to sex offence should be treated with sympathy and their illegitimate children should be assured an upright life in the society. In the case of Francis Coralie Mullin v. The Administrator, Union Territory Delhi[16] it was held that the women prisoners should also be allowed to meet their sons and daughters more frequently, particularly the attitude in this regard should be more liberal in case of under trial prisoners[17].
  3. Women offenders should be handled only by women police or prison officials. The idea of setting up separate women jails exclusively for women prisoners, however, does not seem to be compatible keeping in view the huge expenditure involved in the process.

    In the case of R.D. Upadhyaya v. State of Andra Pardesh and others,[18] the child born out of prisoner mothers their birthplace should not be recorded as ‘prison’ on their Birth Certificate.
  4. The undertrials, minors, recidivists and first offenders should be kept separated from each other. Similarly, political offenders who are not guilty of violence should also be kept separate and not be housed in the same premises in which other criminals are lodged. It is inhuman and unreasonable to throw young boys to sex-starved prisoners or to run mental jobs for hardened and affluent prisoners. The young prisoners should be separated from adults.
  5. There is a need for the scientific classification of prisoners based on nature of the crime committed, age, sex, character and properties of the offender including his educational level and likely response to prison treatment[19].
  6. The prison legislation should make provision for the remedy of compensation to prison who are wrongfully detained or suffer injuries due to callous or negligent acts of the prison personnel. It is gratifying to note that in recent decades the Supreme Court has shown deep concerns for prisoner’s right to justice and fair treatment and requires prison officials to initiate measures so that prisoner’s basic rights are not violated and they are not subjected to harassment[20] and inhuman conditions of living.

Primary Sources:
  1. Constitution of India.
  2. Prison Manual,

  • Criminology and Penology with Victimology, Prof. N.V. Paranjape, Sixteen Edition, Central Law Publications

  • Datir RN. Prison as a Social System, with special reference to Maharashtra State, Mumbai: Popular Prakashan, 1978.
  • Ewing AC. The Morality of Punishment, London: Kegan Paul. Government of India (2010) Prison Statistics in India, New Delhi: NSBR, 1929.
  • Furqan Ahmad. Protective Judiciary in Aid of Human Rights in India, Indian Journal of International Law. 2003, 1929.


  1. Criminality of Women Publisher- A.S. Barnes (1961)
  2. National Crime Records Bureau (NCRB) reports.
  3. National Crime Records Bureau (NCRB)
  4. State of Maharashtra vs. C.K.Jain, AIR 1990 SC 658
  5. T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 : (1983) 2 SCC 68.
  6. Chowdhury Roy Nitai, Indian Prison Laws and Correction of Prisoners, Deep and Deep Publications, New Delhi, 2002, p.75.
  7. Article 19(1)(a) of the Constitution of India.
  8. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
  9. Rattiram v. State of M.P., (2012) 4 SCC 516.
  10. Jagmohan Singh v. State of U.P., AIR 1973 SC 947.
  11. Upendra Baxi v. State of U.P., (1983) 2 SCC 308
  12. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
  13. Sheela Barse v. State of Maharashtra,1983 2 SCC 96
  14. Dharambir v. State of U.P, 2010 5 SCC 344
  15. Christian Community Welfare Council of India vs. Government of Maharashtra,1996(1) BOM CR 70
  16. Francis Coralie Mullin v. The Administrator, Union Territory Delhi,1981 AIR 746, 1981 SCR (2) 516
  17. Francis Coralie Mullin v. Union Territory Delhi, AIR 1981 SC 746
  18. R.D. Upadhyaya v. State of Andra Pardesh and others, AIR 2006 SC 1946
  19. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
  20. Sanjay Suri v. Delhi Administration 988, Cr LJ 705 (SC)

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