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Indian Prisons: sexual abuse & gender-sensitive reforms

Publications, Research paper

ABSTRACT- 

What comes to our mind when we say prison is hard cases and dangerous individuals. What however we always fail to realize is that once a person is thrown into a cell crime does not end. Indeed, sometimes the harm could be caused by the people you want to protect you within the prisons like the wardens, staff members or even fellow inmates. The topic of sexual abuse of women, transgender persons, and men in Indian jails is taken up in the current paper because it is a very disturbing subject matter. It discusses the hidden violence that, most of the time, is not reported because of fear, stigma and absence of proper complaint mechanism. There are several factors that contributed to such abuse which are rooted and intertwined in each other such as constricted prison cells, absent privacy, insufficient staff, unjust power relations, corruption, and inherent gender and caste discrimination. It also throws light on the failures of the prevailing laws and prison regulations that fail to prevent such abuse or penalise it. The article relies on the life-based experiences such as survivor’s stories and reported cases in states such as West Bengal and also addresses the changing laws in the Bharatiya Nyaya Sanhita . With the legal reasoning coupled with the human experience, the paper seeks to create awareness regarding this unspoken crisis and propose sufficient measures to protect susceptible citizens who are locked up in jails.

Keywords 

Prison Reform, Sexual Abuse, Gender Sensitivity, Transgender Rights, Custodial Violence.

Introduction
The current utilisation rate of the correctional facilities in India is well beyond the allotted capacity; it is currently at 130 percent . This has been found to undermine the criminal justice system in protecting the rights and dignity of the more vulnerable prisoners directly in contravention of the constitutional edict placed by Article 21. But credible reports of the widespread sexual abuse facing prisoners have emerged, especially in Tihar Jail (New Delhi) and correctional homes in West Bengal , which remain unaddressed. According to a 2015 inquiry by Tihar, young male inmates were sexually assaulted by the organised gangs, and some of them had to perform sex to have protection. In the West Bengal correctional system, activists revealed stories of women prisoners being sexually abused during a very long period, and some of the women inmates even gave birth in prisons. Transgender prisoners face more challenges since even prison administration has not categorised them as legal subjects. They often are put in un-sanitary “disease wards” and forced to undergo humiliating strip searches. India houses around 550,000 prisoners, with only 4.1 percent of these being women; less than 100 transgender. Women are accommodated in a separate area of the most male prisons, where there may be over 82 percent of them . Most transgender detainees do not have a dedicated facility available . The current occupation rates confirm this reality: men prisons are 134 percent full and transgender wards are astoundingly 212 percent usage. 

The issue is further compounded by transfers that continuously occur: just in 2021, there were 1,650 female prisoners kept in custody along with 1,867 kids and children (mainly infants) who put an already overloaded system under even more pressure. Even though these issues are well-known and continue, the National Human Rights Commission (NHRC) says that harassment, torture, and sexual abuse in prisons still happen without being stopped, despite previous rules meant to prevent these problems .These conditions are very different from what India is supposed to do under its own constitution and international laws, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). Despite constitutional protections under Article 21 (Right to Life and Personal Liberty), inmates are frequently subjected to inhumane treatment.

RESEARCH METHODOLOGY:

The methodology adopted in this paper is doctrinal, relying on qualitative legal research based on secondary data. The research draws upon key Indian legislations such as the Bharatiya Nyaya Sanhita, 2023, the Prisons Act, 1894, and the Transgender Persons (Protection of Rights) Act, 2019. It further examines judgments delivered by the Supreme Court and various High Courts of India. The study incorporates official reports published by bodies like the National Human Rights Commission (NHRC), the Law Commission of India, and the Ministry of Home Affairs. Additionally, it considers relevant international standards, particularly the Universal Declaration of Human Rights and the Nelson Mandela Rules. Supplementary data includes findings from NGO reports, law journal publications, and peer-reviewed legal articles. This comprehensive methodology enables a thorough understanding of the existing legal framework and effectively highlights the urgent need for gender-sensitive prison reforms in India.

REVIEW OF LITERATURE

A Review of Literature serves as the foundation of any scholarly research by examining and analysing existing studies, reports, articles, and findings that are relevant to the research topic. It helps to identify gaps, understand the scope of existing knowledge, and place the current research within the broader academic and policy context. In this paper, the literature review critically explores significant contributions that address sexual abuse in Indian prisons, particularly through the lens of gender, human rights, and institutional shortcomings. Based on a thorough examination of the relevant sources, it becomes evident that the problem of sexual abuse in Indian prisons is both a disturbing and under-researched phenomenon, especially concerning male and transgender prisoners.

  1. Usha Ramanathan, a well-known legal scholar, observes that the Indian prison system reinforces patriarchal structures, where power hierarchies dominate and transparency is lacking. Her analysis draws attention to how sexual violence within prisons is not merely random but often occurs with implicit or explicit state sanctioning, making the victims even more vulnerable and justice harder to access.
  2. The People’s Union for Civil Liberties (PUCL) has reported numerous instances of custodial rape, highlighting not only the occurrence of such abuse but also the absence of effective redressal mechanisms. Their documentation underlines how victims are often silenced, and perpetrators protected, reflecting a systemic failure in providing justice to the incarcerated.
  3. The 273rd Report on Police Reforms by the Law Commission of India acknowledges custodial violence, yet it falls short in addressing the issue through a gender-inclusive lens. Although it covers the broader concerns of abuse by law enforcement, it lacks specific provisions that cater to the unique vulnerabilities of women, transgender individuals, and queer persons in custody.
  4. In their influential writings on queer rights, Arvind Narrain and Gautam Bhan analyze how the criminalisation of non-normative sexual and gender identities has led to a culture of systematic violence, especially within prisons. Their work emphasizes that transgender prisoners face dual marginalization—first, due to their identity, and second, due to the oppressive and often violent institutional settings in which they are held.
  5. The Annual Reports of the National Human Rights Commission (NHRC) regularly reflect on issues such as the absence of gender-sensitive infrastructure, inadequate healthcare, and the hostile attitudes of prison staff. These reports show how institutional apathy worsens the plight of marginalized inmates and contributes to a toxic custodial environment that enables abuse.
  6. Despite the richness of these contributions, most literature remains primarily focused on the experiences of female prisoners. There is a notable gap in academic and legal research addressing sexual abuse of male and transgender prisoners, especially in the Indian context. Therefore, the present paper attempts to fill this critical vacuum by drawing attention to the gender-blindness in the legal system and advocating for inclusive prison reforms that account for all identities behind bars.

Case study 

  1. Sheela Barse v state of Maharashtra AIR 1982 SC 378

Facts of the case

In the case of Sheela Barse Vs. In State of Maharashtra, AIR 1982 SC 378, the appellant, a journalist based at Bombay asked to be allowed to question women prisoners in Maharashtra jails. She was told that any interview could only be conducted in a tape recorded session and that it was the right of the Inspector General of Prisons who had the final discretion to grant such request and that this is normally done in research. When she was denied the application, she argued that it is the constitutional right of the citizens to know whether there is a legal practice in the detention facilities. Correspondence took the form of Article 32 writ petition of the Constitution.

Issues 

  • Is it rational to mistreat female prisoners?
  • Does ill treatment of women in prison contradict Article 21 of Constitution?
  • Are prison authorities charged with the obligation to offer persons in custody with legal advice?

Courts analysis

The Supreme Court initially made it clear that as Article 19(1)(a) contained specific protection with regard to freedom of speech and expression, the current case involved Article 21, which was an expanded guarantee of the right to life and liberty of a person. Life in the context of Article 21 does not merely mean the right of the convicted prisoner but also those who are on trial but have not been proved guilty as well, whose rights cannot be curtailed beyond what can be considered as reasonable.

Even though it did not deny the interest of the people in the prison conditions, the Court stated that the access to them should be controlled not absolute. The right of citizens to receive information of prisons under Article 19(1)(a) or 21 does not provide this right to receive information unconditionally; they may receive this information, but in order to maintain the rights to the president.

The Court rejected the petitioner’s claim for an unrestricted right to interview inmates. Instead, it directed the petitioner to seek permission from the appropriate authority, which would evaluate the request based on guidelines established in the case. The Court allowed the possibility of recording interviews but made it clear that tape recordings required special permission.

Judgement 

The Supreme Court ruled that while the public can visit jails to interview prisoners, this access must follow strict rules. It must comply with jail manuals and fair prison policies. Journalists must apply for permission, and prison authorities must ensure that interviews are conducted only with the inmate’s consent. Coerced interviews are prohibited. Additionally, any information gathered from interviews must be verified by authorities to ensure accuracy before being made public, protecting both prisoners and the public interest

  1. Tukaram v state of Maharashtra (MATHURA RAPE CASE) 1979 AIR 185

Facts of the case – 

  • Mathura, a 14–16-year-old tribal girl, was allegedly raped by two police constables, Tukaram and Ganpat, in the Desai Ganj Police Station (District Chandrapur, Maharashtra) in 1972.
  • Mathura had gone to the police station with her family to file a complaint about her brother’s abduction of her. After the complaint was resolved, the family stepped out, but Mathura was detained inside.
  • Inside the station, it was alleged that she was raped by Ganpat while Tukaram watched.
  • A medical examination showed no injuries on her body or private parts, and no signs of struggle were found.
  • The Sessions Court acquitted the accused, citing lack of injury and suggesting Mathura was a “habituated girl” who had not offered resistance.
  • The Nagpur Bench of the Bombay High Court reversed the acquittal and convicted the policemen.
  • The matter was appealed in the Supreme Court.

Issues of the case – 

  • Whether the sexual intercourse was without Mathura’s consent, and if so, whether it constituted rape under Section 375 IPC, particularly in custodial circumstances.
  • Whether absence of physical resistance or injury implies consent.
  • Whether police officers, being in a position of authority, could be guilty of rape despite absence of overt force.

Judgement –

  • The Supreme Court acquitted both constables, holding that there was no proof of non-consensual intercourse.
  • The Court opined that Mathura did not raise alarm or attempt to escape, and there were no visible injuries.
  • The Court concluded that the intercourse was voluntary, and mere presence in custody was not enough to presume absence of consent.
  • The judgment held that passive submission due to fear cannot be equated with absence of consent unless shown by clear evidence.

Outcome of the Judgement 

  • The judgment sparked massive protests across India and is considered a turning point in Indian feminist legal activism.
  • Resulted in significant legal reforms, including the Criminal Law (Amendment) Act, 1983, which:
    • Introduced Section 114A of the Indian Evidence Act (presumption of absence of consent in custodial rape),
    • Made custodial rape a separate offense with stricter punishment.

The paper is an account of the causes and nature of sexual abuse in prisons across the gender divide, examination of the current law, and recommendations on rectification.

  1. Gendered form of abuse
  • Women: There is a wider exploitation of women prisoners despite their small representation in the prison population. They are exposed to male prison staff abuse since the scarcity of female staff is really high. In addition, their needs in terms of reproductive and health decisions are poorly addressed, and they lack access to gender-specific medical services, hygiene products, or mental health services, thereby making their traumas even worse.
  • Men; Male inmates, who make the largest numbers in the prisons, are in most cases the recipients of sexual attacks but they usually do not report them. The underlying stigma of being a male victim, the concept of toxic masculinity, the fear of being considered a weak person, or the possibility of punishment by the prisoners or the staff connect to improper reporting in most cases. This silence propagates culture of impunity and agony in prisons occupied by men.
  • Transgender People: A group that is very vulnerable is transgender inmates. They are usually forcibly put up with male inmates with no regard to their own feelings with their gender. This results in sexual assault, physical and emotional abuse and high rates of them. Also, in prisons, there are no gender-affirming facilities coupled with hormone therapy, special wards, or sensitized staff, so they feel isolated and insecure.
  1. Legal Framework 
  • Article 21 of the Indian Constitution: This article guarantees the right to life and personal liberty, which includes the right to dignity and protection from torture or cruel, inhuman, or degrading treatment — even when a person is in custody. Sexual abuse of inmates directly violates this fundamental right.
  • Section 376(2)(c) IPC: This section specifically criminalizes custodial rape, recognizing the abuse of authority by public servants. It imposes enhanced punishment when a public servant commits rape on a woman in custody, taking into account the coercive power imbalance in such settings.
  • Bharatiya Nyaya Sanhita, 2023 – Section 64(2): The reformed legal code has classified custodial rape as a non-bailable offence, signifying legislative intent to treat such crimes with seriousness and urgency. It reflects a shift toward stricter accountability for custodial misconduct.
  1. The Transgender Persons (Protection of Rights) Act, 2019

While the Act prohibits discrimination against transgender individuals in employment, education, and healthcare, it is silent on the treatment of transgender persons in custodial settings. There are no express mandates regarding their safety, housing arrangements, or access to gender-affirming care in prisons. This legal vacuum leads to unchecked abuse, poor conditions, and systemic neglect of their rights. 

SUGGESTION   

To avoid sexual violence and harassment in the penal system, prison authorities should develop elaborate structures in terms of architecture and administrative planning to ensure security and dignity of all inmates, both male and female as well transgender.

  1. Transgender facilities of transgender prisoners:

Transgender individuals are at the risk of increased sexual violence in male and female prisons. The third, gender-specific housing lived by their gender identity or choice, in line with NALSA v. unity, without which Union of India, is impossible. Such facilities should have security systems to prevent mistreatment by employees and other prisoners.

  1. Rise in Female and Transgender Employees

Women and transgender prisoners tend to feel uncomfortable in male dominated custodial confinements. An increased presence of staff of the same gender particularly sensitive areas like medical units, washrooms as well as night shifts would minimize the tendency to be abused by the custodial staffs.

  1. Report and monitor mandatory:

India does not have a separate institutional process to take note and take action of complaints regarding custodial sexual abuses.

  1. Surveillance Mechanism

Put in place CCTV cameras on such areas that do not qualify as sensitive (not bathrooms, not cells and so on), and third party audit the same by Human Rights Commissions or NGO regularly in order to keep an eye open to any form of violation.

  1. Institution of Prison Ombudsman:

It is the recommendation that the Ministry of Home Affairs should establish a Prison Ombudsman or Independent Complaints Authority where inmates could make sexual abuse complaints that are studied in secret. The authority should possess the legal powers of recommending prosecution or transfer of offending officers.

  1. Compulsory Health & Psychological mental check:

Health check-ups ought to be done on a regular basis (at least once a month) and these checks must include physical and mental well-being therein. Internal inquiry should be automatic once there is any injury, traumatic information or indication of abuse.

  1. Annual reporting and data collection:

 Each prison should issue an annual report distributing de-identified information related to custodial abuse, complaints received and dealt with, and other activities. These steps induce a level of transparency and encourage an increase in accountability.

  1. Training and sensitisation: 

Most prison officers still remain ignorant of the complexity of gender identity, sexual trauma, and prisoner rights. Thus, a significant change should focus on humanising the custodial system.

  1. Gender-sensitisation seminars: 

The sensitisation workshops on understanding gender diversity, engaging in trauma-informed behaviour and implementing constitutional protections which most especially Section 14, 19 and 21 should be mandatory to all prison staff.

  1. Workshops on the Law: 

Inmates should be made familiar with the rights under the BNS, Prison Rules and any relevant legislation on human-rights. These sessions are to be held twice a month along with the Legal Services Authorities and the appropriate NGOs.

  1. Specialized curriculum on medical officers: 

The doctors working in prisons need a well-structured system of teaching how to recognize sexual trauma and gather medico-legal evidence and provide care in a compassionate manner.

  1. Changes to law/policy:

 The official Indian prison laws and guidelines to guide them are still colonial and very outdated, and there is a need to carry out a wholesome change.

  1. The Prisons Act, 1894: 

This outdated law does not mention words related to sexual abuse, gender identity, or trauma care. It is necessary to rekindle a profound revision of the addition of:

  • Detailed descriptions on sexual and gender violence;
  • Procedures of complaint lodgement, investigation and redress;
  • Trauma support systems;
  • Protections against the abuse of custody and administration employees;
  • An express ban against corporal punishment; and
  • A need to have transparency in reporting and surveillance.
  • Definitions of sexual abuse and harassment in custody
  • Procedures for internal inquiry
  • Protection for LGBTQ+ prisoners.
  1. Each State should update its Prison Manual to:
  • Incorporate transgender-specific housing and search protocols
  • Ban strip searches or other humiliating practices without legal oversight
  • Provide access to gender-affirming healthcare
  1. Integration with BNS, 2023:

Sections such as 64(2)(c) (custodial rape) must be actively implemented and referenced in internal rules, ensuring swift and strict action against abusers.

  1.  Post-Abuse Support

Even when justice is served, the psychological scars of custodial abuse can persist. Rehabilitation is thus key to restoring dignity and reintegration.

  1. Trauma-Informed Psychological Support:

Establish in-house mental health clinics with trained psychologists to assist survivors in dealing with PTSD, anxiety, or suicidal ideation. The National Institute of Mental Health and Neurosciences (NIMHANS) and other bodies can assist in training staff.

  1. Legal Aid and Trial Support:

Prisoners must be connected with District Legal Services Authorities (DLSA) to ensure their complaints translate into proper FIRs, medico-legal procedures, and trials.

  1. Rehabilitation & Reintegration:

Programs should be created to support survivors in their reintegration after release, including vocational training, housing support, and counselling.

Conclusion-

Sexual abuse in Indian jail is a pernicious but unaddressed issue that harms prisoners of both genders. Though to some extent, activism has come up with certain judicial reforms, there has been little to no systemic and policy level change. The paper has been written in a doctrinal viewpoint to show how structural violence and institutional apathy are intertwined to create repetitive abuse, especially on women and the transgender community. India thus needs immediate change in its prison policies in to a rights-based gender-sensitive approach where the fundamental rights of all persons in custody are respected and therefore the dignity of all persons is allowed. To achieve this goal, infrastructural enhancement, legal responsibility and social awareness of the problem are necessary. Justice is a farfetched concept until and unless prisons turn into a sept of redemption as opposed to derailment.

Written by – Prajwal Hargovind Jethani 

KC Law college 

final year of 3 Years LLB