ABSTRACT
The conditions of the prisons are harrowing. But it is worse for the marginalized communities in prison ie. Women and LGBTQIA+. They face pervasive discrimination, harassment, and systemic neglect, both within the prison system and in broader society. Despite constitutional guarantees of equality, women prisoners endure gendered social control, custodial violence, and inadequate legal protections. The colonial-era Prison Act of 1894 remains largely unchanged, failing to address contemporary needs. Similarly, LGBT prisoners encounter severe marginalization, violence, and isolation, exacerbated by the cis- and heteronormative structures of the prison system. Legal and policy frameworks frequently overlook their unique needs, compounding their vulnerability. There is an urgent need for comprehensive reforms to protect the rights and dignity of these marginalized groups. For women prisoners, significant strides are needed in implementing gender-specific policies and improving prison conditions. For LGBT prisoners, especially transgender individuals, the lack of recognition and tailored provisions in the legal system results in heightened risks and systemic abuses.
KEYWORDS
Gender, sexual identity, prison, women, transgender, LGBTQIA+ community, the Prison Act 1894 (hereafter, referred to as ‘the Act’), Navtej Singh Johar v. Union of India, marginalization.
INTRODUCTION
The plight of prisoners in India depicts broader societal inequities, but the experiences of women and LGBT prisoners are particularly harrowing. They are marked by systemic neglect and pervasive discrimination. Though India has been progressive in its legal framework, granting equal status to women and recognizing the rights of the LGBT community, the realities within the prison system are in stark contrast with these ideals. This paper examines the complications faced by women and LGBT prisoners in India, highlighting the urgent need for comprehensive reform and gender-sensitive policies to protect their rights and dignity.
The situation of Indian women prisoners is a mirror of the deep-rooted patriarchal biases that have their roots in society. Although the Indian Constitution affords women equal status and imposes obligations on the State to safeguard their rights, women in prison frequently endure significant hardships. The colonial-era Act, despite its provisions for the protection of female prisoners, remains insufficient in addressing the contemporary needs of incarcerated women. There is often inadequacy in the implementation of the legal provisions which thus results in severe human rights violations, including custodial violence and sexual assault. The Supreme Court’s directives and various committee recommendations remain largely unheeded, reflecting a systemic failure to support their rights.
Even worse is the situation of the LGBT community in the Indian prisons. They are faced with unique obstacles in overcoming the discriminations which lead to amplifying their marginalization and vulnerability. LGBT prisoners encounter heightened risks of violence and sexual assault which is made worse by the structural discrimination inherent in a cis- and hetero-normative prison system. The landmark 2018 Supreme Court decision in Navtej Singh Johar v. Union of India marked a significant step towards recognizing LGBT rights by decriminalizing consensual homosexual relations. However, the reality for LGBT prisoners remains grim, with their specific needs often overlooked and their human rights frequently violated.
Transgender prisoners, in particular, face severe discrimination and systemic neglect. The absence of comprehensive data and policies addressing their unique challenges further compounds their vulnerability. Inconsistent placement practices and lack of gender-sensitive provisions expose transgender prisoners to physical and sexual violence, undermining their right to self-identify and live with dignity. The Delhi Prison Rules of 2018 offer some recognition but fall short of addressing the critical issues faced by transgender inmates.
This paper argues that the Indian prison system’s failure to protect the rights of women and LGBT prisoners necessitates urgent and comprehensive reform. It calls for the implementation of gender-sensitive policies, enhanced legal frameworks, and robust mental health support to ensure the dignity and safety of all incarcerated individuals. By examining the intersection of legal provisions, judicial precedents, and the lived experiences of women and LGBT prisoners, this research aims to shed light on the systemic issues and advocate for meaningful changes in the Indian criminal justice system.
RESEARCH METHODOLOGY
This research paper employs a doctrinal research methodology to explore the multifaceted challenges faced by women and LGBT prisoners in India. The primary focus is on secondary sources, including legal documents, judicial precedents, and reports by various human rights organizations. Key legal frameworks and guidelines, such as the Indian Constitution, the Act, and landmark Supreme Court rulings, are meticulously analyzed to understand the legal protections afforded to women and LGBT prisoners. Additionally, scholarly articles, government reports, and news articles that discuss the conditions of women and LGBT prisoners in India have also been referred to. Reports from organizations such as the National Human Rights Commission (NHRC), the National Commission for Protection of Child Rights (NCPCR), and international human rights bodies provide a comprehensive understanding of the systemic issues within the Indian prison system. Through this comprehensive approach, research can serve as a catalyst for meaningful change, advancing gender justice and empowerment for marginalized communities.
REVIEW OF LITERATURE
The literature on the conditions of women and LGBT prisoners in India reveals a stark and concerning reality. Several scholars have highlighted the inadequacies of the legal framework governing women prisoners in India. The literature on LGBT prisoners, particularly in the Indian context, is less extensive but equally critical. There was an absence of data on transgender prisoners in official reports which further increased their invisibility and the subsequent neglect of their issues. The consensus across the reviewed literature is the urgent need for comprehensive reforms.
METHOD
Even though India has fewer prisoners than many other nations, there are some issues that are present in all Indian jails, and these issues are probably present in many underdeveloped nations as well, if not worse. Critics have focused their attention on a number of issues over the years, including overcrowding, extended confinement of prisoners awaiting trial, inadequate housing circumstances, a dearth of treatment programs, and even inhuman approaches of prison staff. The population of prisoners in the central jail of India in 2022 was comprised of 96.30% male, 3.62% female and 0.07% transgenders. This shows that sex and gender excluding males are marginalized in Indian jails. This can be considered a leading cause of the plight of women, the LGBTQIA+ community, and especially transgenders in prison. The treatment of women and LGBTQ+ prisoners in India presents a complex array of challenges stemming from systemic issues within the prison system. Here is a detailed analysis focusing on the problems, living conditions, and specific issues faced by women, transgender, and gay prisoners.
WOMEN PRISONERS IN INDIA
Indian society recognizes women’s vital role in the community by granting them a respected legal status. Women in India have an equal standing under the constitution. It also puts a duty on the State to uphold international conventions on women’s rights and safeguard them. But the reality is that in a patriarchal Indian society, women often encounter pervasive discrimination. The social control exerted on women prisoners is gendered, with different expectations and regulations imposed on them compared to male prisoners. Women’s lack of awareness of their legal rights contributes to their exploitation on several levels in society. The state of the female inmates is a reflection of the horrors they have experienced outside of jail. They suffer through custodial horrors on a daily basis. Their basic human rights are being ignored despite numerous directions from the Supreme Court, High Courts, and by recommendations of different Committees. This creates significant hardships for them in prison, necessitating urgent attention and comprehensive reform.
India has made significant strides in recent years yet its colonial roots remain evident, particularly in the prison legal scenarios. The Act, a relic of the pre-independence era act, is now almost 130 years old. It cannot be expected to meet the requirements of the present generation. Although the Act includes provisions aimed at safeguarding the rights of women, such as § 27(1) of the Act which provides ‘women inmates the right to live separate from the male prisoners’, a dearth of legal frameworks is evident. § 31 of the Act provides that a civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain herself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding, or other necessaries. The Standard Minimum Rules for the Treatment of Prisoners has also provided to secure women’s rights under Rule 23 (1) that in women’s institutions, there shall be special accommodation for all necessary pre-natal and post-natal care and treatment. Rule 53(1) further stipulates that in mixed-gender institutions, the area designated for women must be overseen by a responsible female officer holding custody of the keys. Additionally, the NCPCR has suggested that early release on personal bonds be an option for jail inmates who are sick, pregnant, or who are responsible for children. Free legal aid is a constitutional imperative for women prisoners by Art. 14, 21, and 39A of the Indian Constitution. § 437 of the Cr. P.C. is another important law that addresses bail in cases of non-bailable offenses. The court has the authority to grant or refuse bail in certain cases. However, this provision’s proviso exempts women and gives a judge the authority to issue bail to a woman regardless of the seriousness of the offense. These were a few legal protections conferred specifically to the women prisoners. These longstanding legal provisions gain additional strength when considered alongside evolving judicial precedents. In R.D. Upadhyay vs State of A.P. & Ors, it was decided that the relevant authorities had to make sure the jail in question had the bare minimum of amenities for child delivery and for offering prenatal and postnatal care for the mother and the child before sending a pregnant woman there. The Supreme Court in the case of Sunil Batra vs Delhi Administration held that whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods ‘right, just and fair’. The case of Hussainara Khatoon vs Home Secretary, State of Bihar aimed to affirm the right to speedy trial of women prisoners.
While these longstanding legal provisions provide some protection, there remains a scarcity of comprehensive frameworks to fully safeguard the rights of women prisoners. Despite judicial precedents reinforcing these rights, significant challenges persist. As of December 2022, there is a stark gender disparity in Indian prisons, with a mere 3.62% of the total prison population being women. This may be the cause of the rights of female prisoners being overlooked and hence there is an urgency for gender-specific policies and facilities. This scarcity is compounded by the lack of necessities and proper accommodation for women prisoners. Most of the women prisoners are also mothers and their children are staying with them in the prison but this affects the growth, survival, and development of the children, hindering their right to pre-school education. Additional trauma is caused because of almost no means to communicate with the outside world.
Sexual assault on women prisoners is also a major problem that they are facing. Between 2006 and February 2010, the NHRC recorded 39 cases of rape in judicial and police custody. For instance, Maloti Kalandi, rescued from trafficking with her children, was entrusted to the Tamulpur police station in Assam for safety. However, Sub-Inspector summoned her to his quarters and raped her. Another incident in Bombay had the police torturing and attacking an inmate while she was in jail. Such cases of police outraging the modesty of women prisoners has, unfortunately, been a common occurrence. In continuation of such incidents, Ms. Saradha, a remand prisoner at the Special Prison for Women in Vellore, Tamil Nadu, was stripped naked, dragged to solitary confinement, and denied clothing. These cases help show the harsh realities faced by women in Indian prisons, where their basic rights and dignity are often disregarded. Despite these challenges, legal remedies like the compensation awarded by the court remain crucial for seeking justice and reform. Yet the main problem remains, that not many women are either bold enough or financially stable to take legal course of action to reprimand the monsters in the prison and often learn to suffer in silence. This brings the critical issue of the inaccessibility of legal services to light. Final Annual Report 2008-2009 of NHRC provides that ‘in most of the jails visited in India, there is a need to strengthen the legal aid system so that qualified lawyers are provided to all those who cannot afford their services’. Another significant issue is the lack of knowledge among female inmates regarding the law and protocol. Uneducated women are unaware of their rights and the legal system, according to the Assistant Secretary-General of United Nations Women’s report “Progress of the World’s Women.”. Women are not taking advantage of § 437 Cr. P.C., which allows them to be freed on bond in situations when they are not bailable because they are ignorant of it. Also, patriarchal norms have had a crucial role in enhancing the plight of women in prisons. It heavily influenced the treatment of women prisoners. They face social exclusion and are often viewed as social misfits both inside and outside the prison system. Theories suggest that the prison system acts as a tool of social control, reinforcing gender inequalities and traditional gender roles, further marginalizing women prisoners.
LGBT community in prison
The marginalization and abuse LGBT individuals encounter in the general public are replicated and exacerbated in prisons. They experience structural prejudice in prison systems founded on hetero- and cis-normative ideas, with their particular needs often disregarded. This may make them more susceptible to harassment, abuse, and social isolation, among other problems in society at large. When incarcerated, LGBT people, especially those who identify as gay, are disproportionately vulnerable to violence and sexual assault from other inmates as well as corrections staff. The detention environment exposes already vulnerable groups to falling prey to targets of torture and ill-treatment. This heightened risk is compounded by intersectionality for those with many marginalized identities, such as individuals who are both LGBT who also belong to Indigenous backgrounds. Excessive periods of isolation and solitary confinement, which are frequently employed as preventative measures against possible damage, can exacerbate psychological anguish and feelings of loneliness. This makes it harder for them to reintegrate into society after they are released from prison and keeps them in cycles of disadvantage inside the criminal justice system. Structural discrimination within prison systems fails to address the specific needs of LGBT individuals, including those who are gay. Policies that impose traditional gender norms, such as mandatory haircut laws, and the lack of inclusive reading materials contribute to invisibility by suggesting that non-heterosexual orientations are aberrant or taboo.
Guidelines and minimum criteria for the treatment of LGBT people in jails are provided by a number of international treaties and soft law documents. The international consensus emphasizes respect for the inherent dignity and rights of LGBT people, stressing that imprisonment should not exacerbate their suffering and that States must ‘prevent torture or cruel, inhuman, or degrading treatment or punishment’. LGBT community have the right to protection from discrimination under human rights standards. As such, states must pass laws and policies that take into account the needs and rights of people of all gender identities and sexual orientations who are detained.
In India, following the landmark Navtej Singh Johar case, 2018, SC’s decision decriminalizing consensual homosexual relations, there has been a significant legal shift toward recognizing and protecting the rights of LGBT individuals. Though there is a long road to eventually reaching equal rights for the LGBTQIA+ community, this decision marked a crucial step toward dismantling discriminatory practices and affirming their right to live with dignity and equality under the law.
TRANSGENDERS IN PRISON
While women prisoners face pervasive discrimination and custodial hardships within the Indian prison system, transgender individuals confront additional challenges stemming from systemic neglect and gendered biases, compounding their vulnerability to violence and marginalization. As discussed in the above sections, the Navtej Singh Johar case did bring some relief to the LGBTQIA+ community. However the transgender community continues to face discrimination and systemic challenges within the criminal justice system. They are disproportionately subjected to unjust arrests and detention under various penal provisions beyond Section 377. A growing body of research evidences that LGBT people are exceptionally vulnerable to violence while incarcerated, with transgender people facing the highest risk. The prison apparatus, built on the male-female gender binary, reproduces dominant notions of sex and gender that are pervasive across society. Consequently, transgender prisoners’ engagement with the prison system is marked by both ‘deliberate indifference’ and multifarious forms of abuse that are not only endemic to prisons but are especially used against sexual and gender minorities.
There is a gross lack of information on transgenders in the National Crime Record Bureau’s annual Prison Statistics report, including the 2019 report as they disaggregate data on gender only by male and female categories. This absence of comprehensive methods of data collection means that the precise number of transgender prisoners remains largely unknown and underestimated. Their right to self-identify their gender, a right recognized by the Supreme Court in the National Legal Services Authority v. Union of India case, is being violated. The failure to acknowledge transgender prisoners in law and policy has led to concerns about healthcare, gender expression, and also their vulnerability to sexual and physical violence within prisons. State jail manuals, which are the primary source of information on prison management, do not make any provisions for transgender prisoners. Only the Delhi Prison Rules, 2018 expressly recognize transgender prisoners as ‘Prisoners with Special Needs’, even though they are in no way comprehensive. These rules ensure separation from other inmates but fall short of addressing other critical issues they face in prisons. As inconsistent placement practices are often dictated by outdated court warrants or medical examinations, which surely do not align with their self-identified gender, it becomes a torment for a transgender person. The safety that is given to women in prisons is snatched from transgenders without any thought. When it comes to their bodily integrity, the former are protected against body searches by officials of the same gender, while the latter are not. This perpetuates their vulnerability to harassment and abuse within prison walls. As highlighted by activists and legal scholars, the plight of transgender prisoners screams for urgency in making and enforcing gender-sensitive policies and comprehensive legal frameworks that recognize their rights and protect them from systemic discrimination and violence.
CONCLUSION AND RECOMMENDATION
The state of the impoverished women prisoners is not good, even in spite of the numerous constitutional provisions that grant women in India a status of equality. In the jails, they are mistreated and disregarded. women frequently experience sexual harassment while in detention, and women still have difficulties at every turn in the criminal justice system. The woman suffers from not knowing her basic rights at the time of her detention. It frequently occurs with low-income and illiterate women. There’s no denying that this violence in jail poses a threat or cancer to our Indian society. There is need for significant development on all fronts, most notably in the mindset of the jail personnel, who must come to appreciate women’s human rights. And crucially, education should be provided to all sectors of women inside the prison, so that they would be aware of their basic rights.
The experiences of LGBT inmates in India bring to light the conflict between the values of human rights and the realities of the prison system. People who are detained are especially susceptible to human rights breaches because they have been robbed of their freedom; LGBT individuals are also more vulnerable because they are a minority, as was previously mentioned. The State’s obligation to protect human rights in its jails is called into question by the imprisonment of LGBT individuals. Measures to safeguard LGBT inmates against human rights abuses, including lowering the prevalence of violence and sexual assault and making sure they receive quality medical care, must be specifically taken into account. Other modifications in the law and policies must be made to implement gender-sensitive policies and enhance mental health support specifically for the LGBT community. The disregard and inconsistent treatment of transgender inmates’ experiences has been shown via an analysis of the legal framework. The hyper-visibility of transgender inmates, which exposes them to physical and sexual abuse, contrasts with their lack of representation in data, guidelines, and procedures. Because of this invisibility, it is difficult to grasp the particular challenges experienced by transgender inmates, which hinders the development of appropriate legal and policy responses. It is first necessary to make public the experiences of transgender inmates in order to have a more profound and comprehensive knowledge of their requirements.
BY: ISHITA GUPTA
B.A. LL.B(2023-2028)
JINDAL GLOBAL LAW SCHOOL