Indian prisons need gender sensitive reform as female prisoners face double marginalization

It is only when we recognize this double marginalization of women and address it differently that we can bring about gender-sensitive prison reform.

In a ruling last month, the Supreme Court expressed dissatisfaction with the shortcomings of India’s administration of death. In line with a report by Judge SK Panigrahi which found that the toilets in Odisha prisons were not suitable for human use and the food provided was not fit for human consumption, the high court asked the State government to take measures to improve the living conditions of inmates. In yet another case, the High Court of Jammu and Kashmir set out to address the problem of prison overcrowding.

It is clear from these repetitive court interventions that the prison administration system in India is broken and in need of some repairs. But the question of whether the path to reform is common to male and female prisoners is rarely asked. But this question must be asked because women prisoners face a double marginalization inside and outside prisons.

First phase of marginalization

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 deep-seated misogyny and patriarchy have led to them being treated as outcasts.

Prisons are no different from the real world in terms of the challenges women face. The stigma attached to being a woman is actually much stronger for female prisoners, as criminality is seen as a deviance from femininity. Consequently, women accused of a crime or sentenced are seen as deviant, evil and even non-woman. Women are not only held accountable to the law, but also to social morality, thus eliminating the possibility of their reintegration into society.

It is in virtue of these stereotypes about women that many criminal law theorists have attempted to explain female criminality using predetermined psychological and biological theories.

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Some scholars argue that women are less evolved than men and therefore female criminality is the result of biological inferiority. And this causes women offenders to deviate from “femininity”. Others, like Ceasre Lombroso, argue that crime is associated with anger and aggression. Men possess this aggression by virtue of their hormones. Thus, women with criminal behavior “are not just abnormal, they are biologically like men.” Katherina Dalton argues that premenstrual syndrome (PMS) is a biological problem that makes women irrational, unstable, and even criminal.

Other theories have associated women’s criminality with “acting out”. While reiterating that women are passive beings bent on being mothers and wives, these theories argue that some undersocialized women are susceptible to manipulation by men and may “act out” as a result of unhealthy socialization.

However, not all of these theories are scientific, as female criminality is the same as male criminality. It can be induced by systemic issues ranging from abuse to poverty and deprivation to need. These contexts affect both men and women, but these theories do not take these issues into account.

Nevertheless, these patriarchal assumptions about female criminality result in double vilification of female offenders and block their path to reform and rehabilitation. More importantly, it robs women of their right to be layered and complex human beings.

Second part of marginalization

According to NCRB data, women make up only 4.16% of the prison population. Nancy Loucks argues that “the low proportion of women in prison inevitably means that the prison culture is dominated by the needs of men. Programs and activities in prisons are often designed with the needs and interests of male prisoners in mind”.

Due to fewer female prisoners, there are fewer facilities to hold female prisoners. Until the end of 2018, there were only 24 women’s prisons. Thus, many women detainees are detained in places far from their hometown and their families. Nearly 84% of female prisoners in India are confined in small compounds in general prisons which understandably lack the necessary infrastructure to cater to the specific needs of women.

Women detained in an Indian prison.Reuters

A study found that more than a thousand women are imprisoned in spaces meant for just 150 people and given just one bar of soap to wash themselves and their clothes and utensils for an entire month. Another report reveals that the majority of female prisoners in Punjab do not even have basic sleeping facilities, forcing them to sleep on the floor.

Since women are the primary caregivers, prisoners often have to keep their children with them. More than 1,500 female prisoners in India live with their children inside prisons. Despite this, basic conditions for proper child development and upbringing, or crèche and other similar facilities are often not available in Indian prisons.

There is a shortage of female prison staff and custodial officers in Indian prisons. In 2015, female prison staff made up only 8.28% of all prison staff. As a result, male staff and officials often become responsible for women prisoners’ affairs, which is undesirable and makes women more vulnerable to harassment and assault. In addition, prison staff and civil servants are not sufficiently sensitized and trained to meet the specific needs of women. In addition to this, there is also a shortage of specialized doctors like psychologists and gynecologists in the prisons.

Inmates are humiliated and raped during body searches and screenings upon admission. They are treated like degenerates and their comfort and privacy ignored. They are often victims of sexual violence from fellow prisoners as well as from the authorities. Cases related to the registration of female detainees without their consent have also been reported. India’s National Human Rights Commission recorded 39 cases of rape in judicial and police custody in just five years, from 2006 to 2010.

All this shows that female criminality is perceived differently from male criminality and that the latter is considered more deplorable. While the treatment of women in prisons is the same as that of men and does not address the particular systemic challenges that women face.

So, as the courts embark on the path of Indian prison reform, they must recognize that these paths are different for male and female prisoners.

To this end, alternatives to imprisonment that include community service, shelter accommodation, rehabilitation facilities, and other non-prison programs should be prioritized when sentencing women offenders. The stigma around delinquency and the incarceration of women, which excludes for them the option of rehabilitation and reintegration, also calls for a differentiated sentence for women.

Even inside prisons, women should be able to benefit from certain differentiated facilities. Nursing women and pregnant women should follow a special diet. Mothers living with children inside prisons should receive a separate food allowance for the children instead of having to share their food with the child. Finally, since many female prisoners are left behind upon release, special support programs should be put in place to meet their financial and residential needs.

It is only when we recognize this double marginalization of women and address it differently that we can bring about gender-sensitive prison reform. Such prison reform is imperative because it is human for both women and men to sin and they do not deserve harsher punishment for being women.

The author is V Year, BA., LLB. (with distinction), NLSIU, Bangalore. Opinions expressed are personal

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