CHAPTER I

INTRODUCTION

1.1. The Rationalisation of Prisons

Prisonisation symbolises a system of punishment and also a sort of institutional

placement of under-trials and suspects during the period of trial.1 Since there cannot be a
society without crime and criminals, the institution of prisons is indispensible for every
country.2

Punishment is the only weapon which enables achievement of the objective of deterrence
and also leads to a system of reformation. Penitentiary jurisprudence has developed
manifold over a period of time. From the starting point of barbaric and cruel form,
punishment resting on the shoulders of retribution in the form of capital punishment by
means of pillory, stoning, constructing into a wall or throwing under the leg of the
elephant to that of social banishment to that of deterrence by awarding death penalty by
less barbaric means to the current flow reformation as the primary objective of
punishment which has the undercurrent of expiation in the light of the fact that
victimology is gaining shape and sound in becoming an inevitable element of the
foundation of criminal justice system. So, imprisonment serves a two-fold purpose, both,
of deterrence as well as of reformation.

The history of prisons in India and elsewhere clearly reflects the changes in society's
reaction to crime from time to time. The system of imprisonment represents a curious

1
PD Sharma , Police and Criminal Justice Administration in India 145 (1985).
2
N V Paranjape, Criminology & Penology with Victimology 467 (1985).

1
combination of different objectives of punishment. Thus, prison may serve to deter the
offender or it may be used as a method of retribution or vengeance by making life of the
offender miserable and difficult. The isolated life in prison and incapacity of inmates to
repeat crime while in prison fulfils the preventive purpose of punishment. It also helps in
keeping crime under control by elimination of criminals from society. That apart, prison
may also serve as an institution for the reformation and rehabilitation of the offenders. It,
therefore, follows that whatever be the object of punishment, the prison serves to keep
offenders under custody and control.3

Jail is one of the most mysterious section of the prison system. Jails, intended as places of
‗safe keeping‘ for persons awaiting trial, are at the same time utilised (deliberately or
otherwise) as rehabilitation facilities for convicted offenders. Every year, approximately,
lakhs of men, women and children are locked up in jails, convicted or awaiting trials for
offences ranging from shop lifting to murder and from political demonstration to treason.
There have been jails and prisons for thousands of years but prior to the eighteenth
century, they were seldom used to incarcerate convicted offenders. 4

The goal of imprisonment is not only punitive but restorative, primarily to make an
offender a non-offender. Rehabilitation is a prized purpose of prison hospitalisation. A
criminal must be cured and cruelty is not curative even as poking a bleeding wound is not
healing. Social justice and social defence: the sanctions behind prison deprivation ask for
enlightened rehabilitative procedures.5

1.1.1 History and Development of Prison System

The system of prisons in India , like many other systems, is a legacy of the British rule.
In order to completely understand the role of prisons in India, it is pertinent to explore
and analyse the development of prisons in America, Britain and India across different
eras. An account of the same has been presented by the researcher in the following
discussion.

3
Supra note 2.
4
Barnes & Teeters, New Horizons in Criminology, 329 (3rd edn.).
5
Sunil Batra v. Delhi Admn. AIR 1980 SC 1579 at 1600.

2
1.1.1.1 The American Prison System

Jails and houses of correction were established in the American colonies soon after
settlement. The medieval period in the history of American colonies witnessed an era
when the offenders were mercilessly tortured and brutally treated. 6 The prison system
itself was originally an experiment, tried out first in America as substitute for primary
methods of punishment such as execution, mutilation, flogging, burning and other
corporal punishments. Before 1682, the life in prisons was hard, unbearable and painful.
This led to severe criticism and a public opinion was gradually mobilized against these
inhuman methods of punishment. This eventually led to passing of the Penn‘s Charter of
1682. The Charter was drawn to bring about reforms in the prison system. It inter- alia
contained that the practice of release of prisoners on bail should be introduced, that the
prisoners should be allowed to make a choice of their food and lodging within certain
limits, that punishment of pillory, i.e., punishing the offender in public places must be
discarded etc.7

However, the reform in prison system was primarily due to the humanitarian zeal and
ingenuity of the Quakers. The Quaker's Movement in 1775 led to the re-modelling of
Philadelphian prison on a new pattern. The first American penitentiary was the Walnut
Street Jail in Philadelphia designated such by the Act to Assembly of April 5, 1970. The
prisoners were now classified into two main categories, viz. (i) the incorrigible or the
hardened criminals; and (ii) the corrigible or the ordinary criminals who were capable of
reformation. Beyond this, the Act of 1790 directed the separation of witnesses and
debtors from the felons and the proper segregation of the sexes and ordered the erection
of a block of cells in the yard of the prison for the complete segregation of the ―more
hardened offenders‖. The block became known as the ―penitentiary house‖ and was the
first of its kind in America. The administration of Philadelphian prison, however,
deteriorated after some time due to overcrowding of prisons and abuse of powers by
Governors. This necessitated the development of new model prisons which were set-up at
Pennsylvaina and Auburn.

6
J. P. Sirohi, Criminology and Criminal Administration 123 (2004).
7
Ibid.

3
 1.1.1.1.1 The Pennsylvania Prison System

The Pennsylvania system was established under the Act of 1821. Under this system
prisoners were confined in solitary confinement day and night. Solitary confinement, as it
was contended, not only prevented the disastrous association of criminals, but also had
the positive virtue of forcing the prisoners to reflect on their crimes and of producing
reformation. Later, it was realised that this solitude would be injurious if continued for
too long so, a provision was made for association with official visitors like the Governor
of the State, the members of the State Legislature, the Judges of all Courts, the Mayors of
the Philadelphia, Pittsburgh, and Lancaster, the county Commissioners and Sheriffs, and
a Committee of the Philadelphia Society for Alleviating the Miseries of Public Prisons8
but what was noticeable was that the relatives, friends and other inmates could not have
access to the prisoners. The complete separation of prisoners in isolated cells without
any work brought terrible results. Though, later, work for prisoners was introduced but it
was to be done in isolation, in their cells and not in congregate shops. The system was
expensive and not successful so, it was formally abandoned in 1913 in favour of Auburn
system.

1.1.1.1.2 The Auburn Prison System

A new prison modelled after Pennsylavania pattern was built at Auburn in 1818- l819. By
Act of 1821, the prisons in Auburn were divided into three classes. The first class,
composed of "the oldest and most heinous offenders" and they were to be kept in solitary
confinement continuously; those in the second class were to be kept in their cells for
three days a week and the others for one day a week. But a couple of years' experience
with this prison showed that the severity of solitary confinement had disastrous
consequences and thus, it proved to be a great failure.9 A legislative commission which
investigated the policy in 1824 recommended that it be abandoned at once and this
recommendation was accepted. After this, the Auburn authorities provided for work by
the prisoners in association but in silence during the day and solitary confinement during
the night but congregate work in shift during the day. This is known as the Auburn
8
Sutherland, Cressey, Principles of Criminology 449 (6th Edn.).
9
Supra note 6 at 125.

4
system in contrast with the Pennsylvania system which was solitary confinement by day
and night. As rightly pointed out by Professor Gillin, "the Auburn system was a system of
discipline by repression and labour under fear." Although, the system yielded productive
results and silence while at work or during leisure prevented contamination of the
prisoners, it was undoubtedly a brutal method of treating the offenders and hardly had
any reformative effects on them. The system as a whole provided no exercise, play or
sociability. Warden himself had no conversation with the prisoners other than the time
just before their release, when a man was given three dollars and some advice.10

The controversy between the Pennsylvania and Auburn methods, after ranging for more
than half a century, was diverted by the importing of a new system from Europe and
Australia. This system was started in an organised manner in the Australian Convict
camps by captain Maconochie. 11 It consisted of the indeterminate sentence, the mark
system as a method of measuring good behaviour in prison and a form of parolee. The
first institution which provided for the above reforms was the Elmira Reformatory in
New York, created by law in 1869 but was opened in 1876. Almost all reformatories
constructed in the United States since 1875 have been based on the Elmira System,
including the conflict between treatment and punishment.12 Fifty years after Elmira was
opened, New York prisoners were begging the sentencing judges to send them to Auburn
prison rather than to Elmira reformatory because the disciplinary system at Elmira was
extremely severe. A higher official at Elmira boasted of this fact, believing that such a
state of affairs was a credit to his institution.13

Whatever may be the deficiency of the Elmira system it helped in the rehabilitation of
prisoners and work in prisons kept the inmates engaged during their stay in prisons with

10
Taft and England, Criminology 408 (4th Edn.) quoted in J. P. Sirohi, Criminology and Criminal
Administration 125 (2004).
11
John v. Barry, "Pioneers in Criminology: XII, Alexander Maconochie (1787- 1860)" Joumal of Criminal
Law and Criminology, 47: 145-l6l, July -August, 956 quoted in J. P. Sirohi, Criminology and Criminal
Administration 125 (2004).
12
Ibid.
13
H.E. Barnes & N.K. Teeters, New Horizons in Criminology 553-553 (l957).

5
the result they were mentally and physically fit and alert to be able to be absorbed in the
society as reformed and normal men after their release.14

It was around 1930 that individualisation of prisoners became the object of punishment.
Hence, the criminals were grouped not according to their age, sex or dangerousness but
according to their individual needs and possibility of rehabilitation.15

It was the opening of a reception centre at Illinois in 1933 that really marked the
beginning of reformatory era in the American prison system. The cells in this prison were
well ventilated and provided for sufficient light arrangements. It provided facilities for
reading, writing and learning besides arrangements for physical exercise and recreation of
inmates. The sentence of solitary confinement was completely abolished and the general
tendency was to narrow down the gap between the outside free life and the life inside the
prison to the maximum possible extent.16

1.1.1.2 The English Prison System

Like U. S. A. the prisoners in England were also treated brutally and the punishments
were barbarous in nature. John Howard in his famous book, "The State of Prisons", has
maintained that in eighteenth century the condition of prisons was awful in England. The
prisons were damp and vermin infected and were the places full of filth, corruption, sex
indulgence and all sorts of vices.17 In the beginning England adopted one particular type
of American prison, the Pennsylvania system. England used it for a long time followed
by the close of revolutionary war before she had developed her penal transportation to
Australia.18

Following the objections of the Australian free settlers to the transportation of such a
large number of penal convicts to that country and the attacks upon the system by
numerous leaders of valuable thought in England, like Jeremy Bentham, the penitentiary
system borrowed from the United States along with some modifications became a

14
Supra note 13.
15
Act of May 27, 1930, Ch. 339.
16
Vold CB., Theoretical Criminology, l22 (1958).
17
J. P. Sirohi, Criminology and Criminal Administration 126 (2004).
18
N V Paranjape, Criminology & Penology with Victimology 472 (1985).

6
competitor of the penal transportation system to Australia. Milbank prison was started
under the agitation of Jeremy Bentham in the early 19th century and as penal
transportation became more and more objectionable, the penitentiary system finally
became the main reliance of England for the treatment of her convicts. In 1877, the local
prisons of England and Wales were put under the control of Home office and ultimately
under the same board as that which had control of the convict prisons. The prisons then
became the resort to which government turned for the punishment of those who were not
sentenced to penal servitude.19

England developed a system of classification of prisoners gradually. This had been her
great contribution to the modern prison system. Sir Joshua Jebb adopted the experiment
of Colonel Maconochie who tried the classification of different convicts of Korfolk
Island near Australia and later in the Birmingham prisons of which he was the
Governor.20According to this system, men were classified in the different groups with
increasing liberty as they went up through the different stages. Another experiment which
developed out of the Australian penal transportation system was the ticket-of-leave plan
or what is called at present time release on license. This system was borrowed in 1876 by
the founders of Elmira reformatory and was called parole.21

Since the unification of the prison system of England in 1877 and putting of the local
prisons under the control of the Home Office, the House Secretary has had the power to
classify both within the prison and by prisons. Up to 1895, this power was sparingly used
except to keep first offenders and juveniles away from the habitual. 22

The Prison Act of 1898 provided for the introduction of the first and second divisions for
first offenders of hitherto good character. This law, therefore, attempted to classify even
first offenders into different classes. "Observation has shown that because they were so
few in the first and second divisions in each local prison, as a practical matter it was
impossible to grant the great privileges which the law provides for those in the first

19
Supra note 5 at 127.
20
Supra note 16.
21
Supra note 16.
22
Hobbhouse and Brockway, English Prisons, Today London 214 (l922) quoted in J. P. Sirohi,
Criminology and Criminal Administration 126 ( 2004).

7
division or those in the star class. In practice, however, these struggles at securing a
classification of prisoners resulted, at least in part, in separating juveniles and
offenders."23

Later, the attempt to classify the prisoners in separate institutions was made, each
intended for a different class of prisoners and classified within the institutions on the
basis of the star class, first and second division and habituals. This led to the setting aside
of certain institutions for specific types of prisoners. For example, Wakefied prison
received the longer sentenced local prisoners with the intention of giving them industrial
training.24 Another local prison Wormwood Scrubs, was reserved for those who had not
been in prison before. At both Wakefied and Wormwood Scrubs a vigorous scheme of
training, physical, industrial, mental, and more, was the rule.25

The system of classification of prisoners was introduced in England partly to deter the
criminals from crime and partly to enable the authorities to individualise the treatment of
prisoners.26

Sir Arthur Waller, the then Chairman of Prison Commission for England and Wales,
suggested to the International Penal and Penitentiary Congress in 1925 that a set of
general rules should be drawn up for governing the treatment of prisoners in all the
member countries. Thereupon, he along with his two fellow Commissioners, was
assigned the job of drafting the rules. Consequently, Standard Minimum Rules for the
treatment of Prisoners were drafted for the first time and they were accepted by the
United Nations after World War II. This paved further ground for discussion on this
important topic at international level in the subsequent years.27

1.1.1.2.1 The Modern British Prison System

The English Criminal Justice Act, 1982 envisages a scheme of liberalised parole system
to ease the pressure of prison population. The mounting pressure on prisons in England
23
Supra note 22.
24
Report of the Commissioners of Prisons and Directors of Convict Prisons l6 (1923-24) quoted in J. P.
Sirohi, Criminology and Criminal Administration 127 (2004).
25
Ibid.
26
Supra note 6 at 127.
27
N V Paranjape, Criminology & Penology with Victimology 473 (1985).

8
and Wales is evinced by the fact that there were more than 45,000 inmates in prisons in
July 1981 with the result freedom of movement of prisoners in many prisons had been
drastically reduced.28 Some prisoners on remand had to be housed even in police station
garages. To cope up with the situation, it was proposed to release prisoners on license
after serving one-third of the sentence thus, removing the discretion of Parole Board. The
Parole Board, however, did not favour such a time-bound release of prisoners and
suggested that it should be limited to short term sentences.29 This proposal was, however,
rejected by the British Parliament while discussing the Criminal Justice Bill in 1982 and
partially suspended sentence30 was accepted as an alternative to this proposal as it would
make parole a more constructive measure because the minimum period under the Act is
twelve months or one third of the sentence, whichever is longer. Thus, deduction of
minimum period for release on parole brought greater number of prisoners into the parole
scheme thereby reducing the pressure on prison administration.

The salient features of the present prison system in Britain may be summarised as
follows31:

1. The prisoners are classified into different categories through group therapy
method.

2. The inmates are provided vocational training inside the prison for their
physical, moral and mental upliftment.

3. Reformation of the prisoner is sought within the community itself.

4. After the prisoner's release from the prison his rehabilitation and socialisation is
entrusted to after care institutions and voluntary social service organisations.

5. Prisons are treated as minimum security institutions wherein basic rights of

prisons should be duly recognised.

28
Prison Statistics for 1981. Cmndl. 8654 (1982) quoted in N V Paranjape, Criminology & Penology with
Victimology 474 (1985).
29
The Report of the Parole Board for 1981 (1982) quoted in N V Paranjape, Criminology & Penology with
Victimology 474 (1985).
30
The English Criminal Justice Act, 1982, Sec. 30.
31
N V Paranjape, Criminology & Penology with Victimology 475 (1985).

9
1.1.1.3 The Indian Prison System

Prisons in India are not governed uniformly, as every State is applying different rules and
regulations. In 1959, a Model Prison Manual was prepared by the Government of India
for the purpose of revising the State Manuals. It was also meant to lend uniformity to
rules and regulations regarding procedure and mode of punishment. Twenty years later,
inter-state conference admitted that model but, unfortunately, a study on its
implementation in 1983 found that the Model Prison Manual had not been implemented
in most of the States.32

The Indian Government has been providing all feasible assistance to State Governments;
whether financial or technical; to modernise prisons in order to achieve, more
efficaciously, the objectives of prisons by and large in terms of reformation and
rehabilitation of offenders.

The task relating to prisons was transferred to the Bureau of Police Research and
Development (BPRD) in 1995 by the Ministry of Home Affairs. Previously, the All India
Committee on Jail Reforms (1980- 83) had also emphasised on the requirement of a
consolidated law on prisons. In 2003, BPRD formulated the Model Prison Manual, 2003.

1.1.1.3.1 Growth of Prisons across different eras in India

The historical account of jails in our country can be traced back to the epic age. In
Ramayana, when Bharata meets Rama at Chitrakut, the latter, while making a detailed
inquiry about the state of polity and welfare of people of Ayodhya, did not forget to elicit
information on the conditions of jails therein. References of jail are also found during the
period of Mahabharata. In those mythological periods eighteen important State officials
existed and one of them was the head of the institution of jail which was known as the
karagriha. In Manu Smriti, it is stated that "the King should have all the prisons built on
the royal highway where the suffering and mutilated evil doers can be seen". There were
also horrific punishments like feeding wrongdoers live to animals, mutilation etc. There
is also the case of Krishna's parents in a dungeon in Mathura where he was born. The

32
Kum Kum Chada, Indian Jails 41- 44 (Vikas Publication House, New Delhi, 1983).

10
Archeological Survey of India has found the jail in which Ajatasatru confined his father
Bimbisara at Raigriha, the capital of Magadha which is the modern day Bihar. The pre-
Buddhist jails were said to be very cruel. Here, the inmates were kept in chains and under
heavy loads. Whipping was a daily routine in these jails. Account of Ashoka's Naraka
(hell) was included in the writing Huien Tsang and Fa-Hien. Polished treatment of
prisoners was unknown in this period. During Muslim period, old forts and castles served
the purpose of prisons. These prisons were not as cruel as the pre-Buddhist era.33

There are different views on the origin of prison administration in India Some scholars
believe that their origin started from the Vedic period, some claim it to be since the Gupta
period while others believe that it originated during the British regime, but, all the
scholars agree that reformation in Jail Administration started from 1835.34 Before that,
there was no concern for improving the condition of the prisons. The modern prison
administration is the product of British activity in India. While the Mullah Committee35
reviewing prison reforms in India, stated that "our contemporary prison administration is
a legacy of British rule‖ adding that Lord McCauley as the author of the Indian Penal
Code, provided for imprisonment as the most commonly used penal treatment. McCauley
said that ―imprisonment is the punishment to which we must chiefly trust. It will
probably be resorted to in ninety cases out every hundred."36 Beginning of the modern
prison system in India may be sketched from McCauley‘s plan of setting up large central
prisons and district jails. Lord McCauley, as the first Law Member of the General‘s
Council in his minutes dated December 14, 1835, made out a case for the appointment of
Committee for collecting information on the state of Indian prisons and prepared a plan
for improving prison discipline. Development in prison administration during the British
era can be studied by understanding the work carried out by various Commissions and
Committees set up from time to time as follows:

 First Commission on Prison Discipline, 1834.

 The Prison Discipline Committee, 1836.

33
Supra note 32.
34
Dr. Krishna Pal Malik, Penology, Victimology & Correctional Administration in India 288 (2012).
35
All India Committee on Jail Reforms, 1980-83, para 2.1 quoted in Dr. Krishna Pal Malik, Penology,
Victimology & Correctional Administration in India 288 (2012).
36
Id. at 289.

11
  First Jail Reform Committee, 1838.
 Second Jail Reform Committee, 1862.
 Second Commission on Jail Management and Discipline, 1864.
 Third Commission or Conference at Calcutta, 1877.
 The Fourth Jail Commission, 1888.

This was followed by passing of the Prisons Act, 189437 which primarily laid out the
administrative structure of management and control of prisons and nothing therein
provided for any safeguards to the prisoners except Section 27 providing for separation of
prisoners.

It is important to note that the development of Prisons after independence are not so far
and vide either. The Constitution of India, which came into force on January 26, 1950,
vide Article 246 empowers the State legislature to make laws on any of the matter of List-
II (called State List). It means the State is only authorised to make laws on any subject
listed in List-II of the Seventh Schedule of the Constitution. Entry-4 of the Seventh
Schedu1e‘s List-II, states that, "the matters relating to Prisons, reformatories, Borstal
institutions and other institutions of alike nature and persons detained therein;
arrangements with other States, the use of prisons and other institutions.‖ During the early
1950's a number of jail reform committees were appointed by various State governments
with the aim of achieving the goal of humanisation in prisons and to put the treatment of
offenders on a scientific footing.

As stated earlier, at present the Model Prison Manual, prepared by BPRD in 2003 is
awaiting its implementation across India. Keeping in mind that imprisonment is the
primary mode of imparting punishment in the contemporary India but the psycho-
sociological justification of the same having been subject to modification from time-to-
time; the researcher has presented a capacious account of changing dynamics of

37
Act IX of 1894.

12
punishment in India during different time periods and has meticulously traced the
development of prison system specifically in the post- intendance era.38

1.1.2 Human Rights and Women Prisoners

"As the number of women in prisons grow, there is an increased concern among human
rights organisations, women's rights groups, and penal reformers about the problems
women face therein and the wider impact on their families and communities."39 "Given
the international problems women prisoners face, it is natural to look into international
laws, standards and norms for solutions. The international human rights instruments and
mechanisms40 provide extensive guidance, both aspirational and practical, for improving
the conditions in which incarcerated women are forced to live." 41 "Human rights, by
definition, belong to everyone, based on their humanity without regard to their conduct or
status." 42 "The key human rights documents are very clear in their statement of the
intrinsic "dignity and worth of the human person"43 and make no exception for those who
have broken the law or otherwise violated the social contract. The significance of these
rights to people deprived of their liberty is also clearly spelled out in the Universal
Declaration of Human Rights."44 Article 5 thereof states: "No one shall be subjected to
torture or cruel, inhuman or degrading treatment or punishment." Further, the

38
See, Chapter 2.
39
The Sentencing Project, Women In The Criminal justice System: Briefing Sheets (May 2007), available
at http://www.sentencingproject.org/Admin%5CDocu ments%5CNews%5Cwomenincj_total.pdf quoted
in Jenni Gainsborough, "Women in Prison: International Problems and Human Rights Based Approaches
to Reform", 14 Wm. & Mary J. Women &L.277 (2008).
40
U.N. Charter; African [Banjul] Charter on Human and Peoples' Rights, June 27, 1981, O.A.U. Doc.
CAB/LEG/67/3/Rev. 5 (1981), reprinted in 21 I.L.M. 59 (1982) [hereinafter African [Banjul] Charter];
Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S.,
1144 U.N.T.S. 123; Council of Europe, Convention for the Protection of Human Rights and Fundamental
Freedoms, E.T.S. No. 5, 213 U.N.T.S. 221 (1950); Universal Declaration of Human Rights, G.A. Res.
217A U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) quoted in Jenni
Gainsborough, "Women in Prison: International Problems and Human Rights Based Approaches to
Reform", 14 Wm. & MaryJ. Women &L.279 (2008).
41
Vivien Stern, A Sin Against The Future: Imprisonment In The World 138 (1998).
42
Id. at 141.
43
U.N. Charter, Introductory Note quoted in Jenni Gainsborough, "Women in Prison: International
Problems and Human Rights Based Approaches to Reform", 14 Wm. & Mary J. Women &L.280 (2008).
44
Universal Declaration of Human Rights, 1948.

13
International Covenant on Civil and Political Rights, vide Article 10, states, "All persons
deprived of their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person."45 Similar wording is included in the European Convention
on Human Rights and the African Charter on Human and Peoples' Rights."46

The Covenants and Conventions that followed from the Universal Declaration of Human
Rights elaborated on these rights and gave them the specificity to create the legal
framework that defines how states should treat their citizens and their language too often
has particular relevance to incarcerated people. The Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment47 is relevant to detained
people.48

"The assertion of an inalienable right to human dignity is a common element of many of

the key human rights instruments49 and surely it is a notion of great relevance to any
consideration of the treatment of prisoners." "Because women are a minority in prison
systems and because those systems are generally designed by and for men, women are
inherently unequal, and their specific needs are given short shrift in many instances."50
The Universal Declaration of Human Rights, Article 2; the International Covenant on
Civil and Political Rights (ICCPR) Article 3 and the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW)51 all speak of the right to equal
treatment.

45
International Covenant on Civil and Political Rights, art. 10, 1, G.A. Res. 2200A (XXI), U.N. GAOR,
21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966).
46
Ibid.
47
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, G.A.
Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984).
48
Supra note 47 at pt I., Art. 6, 3.
49
Convention Against Torture, Art. 37.
50
Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna,
Austria, Apr. 10-17, 2000, Offenders and Victims: Accountability and Fairness in the Justice Process,
Women in the Criminal Justice System, 11, U.N. Doc. AICONF.187/12 (Mar. 2, 2000) quoted in Jenni
Gainsborough, "Women in Prison: International Problems and Human Rights Based Approaches to
Reform", 14 Wm. & Mary J. Women &L.271 (2008).
51
Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N.
GAOR, 34th Sess., 107th plen. mtg., U.N. Doc. AIResI34I180 (Dec. 18, 1979) [hereinafter Discrimination
Against Women]. CEDAW is another of the treaties that the U.S. has signed but not ratified. See Office of
the United Nations High Commissioners for Human Rights, Ratifications and Reservations: Convention on
the Elimination of All Forms of Discrimination Against Women, www2.ohchr.org/english/ law/cedaw.htm

14
But there is more to the human rights framework than the inspirational and aspirational
language that the treaties and their optional protocols52 give us. For much of the world,
international, regional and national human rights laws provide binding legal rights and
are the basis of litigation around prison condition issues.53

"The U.N. in Geneva, where the U.N. High Commissioner for Human Rights, the various
human rights treaty bodies and the Human Rights Council are based is generally thought
of as a repository of human rights. However, the U.N. Office on Drugs and Crime
(UNODC) in Vienna is the home of many of the standards that formulate and promote
internationally-recognised principles in areas of criminal justice, such as the
independence of the judiciary, the protection of victims, alternatives to imprisonment,
treatment of prisoners and law enforcement use of force."54 U.N. standards in these areas
are developed by the U.N. Commission on Crime Prevention and Criminal Justice and
then approved by the U.N. General Assembly meeting in New York. The standards that
are particularly relevant for monitoring the treatment of women and girls in prison
include:55

(last visited Jan. 18, 2008). CEDAW was adopted in 1979 by the U..N. General Assembly. The Convention
defines discrimination against women as ". . . any distinction, exclusion or restriction made on the basis of
sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field." Discrimination
Against Women, at pt. I, Art. 1.
52
Treaty is "a generic term embracing all instruments binding at international law concluded between
international entities, regardless of their formal designation." United Nations Treaty Collection: Treaty
Reference Guide, available at http://untreaty.un .orgl Englishlguide.asp (last visited Jan. 18, 2008).
Optional Protocols create additional rights and obligations for a treaty and are subject to independent
ratification.
53
Vivien Stern, A Sin Against The Future: Imprisonment In The World 138 (1998) quoted in Jenni
Gainsborough, "Women in Prison: International Problems and Human Rights Based Approaches to
Reform", 14 Wm. & MaryJ. Women &L.279 (2008).
54
United Nations Office On Drugs And Crime, Criminal Justice Assessment Toolkit (2006), available at
http://www.unodc.org/pdflcriminaljustice/ INTERNATIONAL.COOP.pdf quoted in Jenni Gainsborough,
"Women in Prison: International Problems and Human Rights Based Approaches to Reform", 14 Wm. &
Mary J. Women &L.287 (2008).
55
The full list of standards is available on the UNODC web page at http://www
.unodc.org/unodc/en/justice-and-prison reforn/compendium.html. See United Nations Office On Drugs &
Crime, Compendium Of The United Nations Standards And Norms In Crime Prevention And Criminal
Justice (2006) quoted in Jenni Gainsborough, "Women in Prison: International Problems and Human
Rights Based Approaches to Reform", 14 Wm. & Mary J. Women &L.288 (2008).

15
  U.N. Standard Minimum Rules for the Treatment of Prisoners;56
 U.N. Standard Minimum Rules for the Administration of Juvenile Justice; 57
 U.N. Rules for the Protection of Juveniles Deprived of their Liberty;58
 U.N. Minimum Rules for Non-Custodial Measures;59
 Code of Conduct for Law Enforcement Officials. 60

The Standard Minimum Rules for the Treatment of Prisoners is a key document for
anyone concerned with bringing conditions for women prisoners in line with international
norms.61 Among the important principles it articulates:

 "Men and women should be kept in separate institutions or in an entirely separate

area of the premises allocated to women";

 "No male member of staff shall enter the part of the institution set aside for
women unless accompanied by a woman officer";

 "Women prisoners shall be attended and supervised only by women officers";

 "There shall be special accommodation for all necessary prenatal and post-natal
care and treatment";

 "Where nursing infants are allowed to remain in the institution with their mothers,
provision shall be made for a nursery staffed by qualified persons, where the
infants shall be placed when they are not in the care of their mothers."

56
Supra note 55 at 3-23.
57
Id. at 51-77.
58
Id.at 87-104.
59
Id.at 117-28.
60
Id.at 343-48.
61
The U.N. Standard Minimum Rules were passed by the U.N. General Assembly in 1957 and are an
international standard, but are not part of international law. Id.at 26. In 1995, Penal Reform International
published Making Standards Work:An International Handbook on Good Prison Practice that interpreted
and provided additional guidance on adherence to the Standard Minimum Rules quoted in Jenni
Gainsborough, "Women in Prison: International Problems and Human Rights Based Approaches to
Reform", 14 Wm. & Mary J. Women &L.288 (2008).

16
1.1.3 Role of Judiciary in Safeguarding Rights of Prisoners in India

"It is established that conviction for a crime does not reduce the person into a non-person,
so he is entitled to all the rights, which are generally available to the non-prisoner. On the
other hand, it cannot be denied that he is not entitled for any absolute right, which is
available to a non-prisoner citizen but subject to some legal restrictions. The Supreme
Court of United States as well as the Indian Supreme Court have held that prisoner is a
human being, a natural person and also a legal person. Being a prisoner he does not cease
to be a human being, natural person or legal person. 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 therefore, the imposition of any major punishment within the prison
system is conditional upon the absence of procedural safeguards."62 The courts which
send offenders into prison, have an onerous duty to ensure that during detention, detenues
have freedom from torture and follow the words of William Black that "Prisons are built
with stones of Law". So, when human rights are harassed behind the bars, constitutional
justice comes forward to uphold the law.

The Honourable Supreme Court of India has held that, "imprisonment does not spell
farewell to fundamental rights although by a realistic re-appraisal, courts will refuse to
recognize the full panoply of Part-III enjoyed by the free citizens. Article 21 read with
Article 19 (1) (d) and (5) is capable of wider application than the imperial mischief which
gave birth to it and must draw its meaning from the evolving standards of decency and
dignity that mark the progress of a matured society. Fair procedure is the soul of Article
21. Reasonableness of the restriction is the essence of Article 19 (5) and sweeping
discretion degenerating into arbitrary discrimination is anathema for Article 14.
Constitutional karuna is thus injected into incarceratory strategy to produce prison
justice". 63 Earlier, the Supreme Court held that, "conditions of detention cannot be
extended to deprivation of fundamental rights."64 Prisoners retain all rights enjoyed by
free citizens except those lost necessarily as an incident of confinement. Moreover, the
62
Charles Wolff v. McDonnell, (1974) 41 Law Ed 2nd 935; DBM Patnaik v. State of Andhra Pradesh, AIR
1974 SC 2092; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675; and Sunil Batra v. Delhi
Administration, AIR1980 Cr.LJ 1099.
63
Charles Sobaraj v. Supdt. Central Jail Tihar, AIR 1978 SC 1514.
64
State of Maharashtra v. Prabhakar Pandurang Sanzgir, AIR 1966 SC 424.

17
rights enjoyed by prisoners, under Articles 14, 19 and 21, though limited, are not static
and will rise to human heights when a challenging situation arises.65

Mr. Justice Douglas reiterated his thesis when he asserted ―Every prisoner‘s liberty is, of
course, circumscribed by the very fact of his confinement, but his interest in the limited
liberty left to him only the more substantial. Conviction of a crime does not render one a
non-person whose rights are subject to the whim of the prison administration, and
therefore, the imposition of any serious punishment within the prison system requires
procedural safeguards.‖ Mr. Justice Marshall also expressed himself clearly explicitly in
the same terms ―I have previously stated my views that a prisoner does not shed his basic
constitutional rights at the prison gate and I fully support the court‘s holding that the
interest of inmate."66

The Supreme Court of India has been very vigilant in the recent past against
encroachments upon the human rights of the prisoners. Article 21 of the Constitution of
India provides that ―No person shall be deprived of his life and personal liberty except
according to procedure established by law.‖ The right to life and personal liberty is the
back bone of the human rights in India. The Indian judiciary has served as an
establishment for providing effective cure against the violations of human rights through
its positive approach and activism. By giving a liberal and all-inclusive meaning to "life
and personal liberty", the courts have formulated and have established plethora of rights.
The court gave a very narrow and concrete meaning to the Fundamental Rights enshrined
in Article 21. In A.K. Gopalan’s case,67 the court had taken the view that each Article
dealt with separate rights and there was no relation with each other i.e. they were
mutually exclusive. But this view has been struck down in Maneka Gandhi's case68 and
held that, "they are not mutually exclusive but form a single scheme in the Constitution,
that they are all parts of an integrated scheme in the Constitution." In the instant case, the
court stated that “the ambit of personal liberty by Article 21 of the Constitution is wide
and comprehensive. It embraces both substantive rights to personal liberty and the
65
Charles Wolff v. McDonnell, (1974) 41 Law Ed 2nd 935.
66
The views were observed by Justice Bhagwati in Francis Coralie Mullin v. The Administrator, UT Delhi,
AIR 1981 SC 746.
67
A.K. Gopalan v. State of Madras, 1950 SCR 88.
68
1978 AIR 597.

18
procedure prescribed for their deprivation and the procedures prescribed by law must be
fair and just."

In the following cases namely Sunil Batra (I), 69 M.H.Hoskot 70 and Hussainara
Khatoon,71 the Supreme Court has taken the view that the provisions of Part III of the
Constitution of India should be given widest possible interpretation. It has been held that,
"right to legal aid, speedy trial, right to have interview with a friend, relative and lawyer,
protection to prisoners in jail from degrading, inhuman, and barbarous treatment, right to
travel abroad, right live with human dignity, right to livelihood, etc. though specifically
not mentioned are Fundamental Rights under Article 21 of the Constitution." Thus, the
Supreme Court of India has considerably widened the scope of Article 21 and has held
that its protection will be available for safeguarding the fundamental rights of the
prisoners and for effecting prison reforms. The Supreme Court of India has developed
human rights jurisprudence for the preservation and protection of prisoner‘s right to
human dignity. The concern of the Apex judiciary is evident from the various cardinal
judicial decisions.

1.1.3.1 Right to life and personal liberty

In Inder Singh v. State (Delhi Adm.) 72 , the Supreme Court issued certain directions
regarding treatment of two young men convicted of murder and sentenced to life
imprisonment with a view to reform them. Article 21 of the Constitution is the
jurisdictional root for this legal liberalism.

1.1.3.2 Right to live with human dignity

"It is evident that Article 21, 73 though so framed as to appear as a shield operating
negatively against executive encroachment over something covered by that shield, is in

69
(1978) 4 SCC 409.
70
1978 AIR 1548.
71
1979 AIR 1369.
72
AIR 1978 SC1091.
73
Article 21 of the Constitution, "Protection of life and personal liberty: No person shall be deprived of his
life or personal liberty except according to procedure established by law."

19
fact the legal recognition of both the protection or the shield as well as of what it protects
what lies beneath that shield."74

By now, it is well recognised principle that "right to live" includes does the right to live
with human dignity and is not merely confined to physical existence. While expanding
this concept, the Honourable Supreme Court has held that the term ‗life‘ includes all that
goes along with it i.e. bare necessities of life like adequate nutrition, clothing, shelter and
facilities for reading, writing, expressing oneself in diverse forms, moving around freely
and mixing with other human beings.

It was observed by the Court in Francis Coralie Mullin's case75 that:

―…Article 21 as interpreted in Maneka Gandhi‘s case76 requires that no

one shall be deprived of his life or personal liberty except by procedure
established by law and this procedure must be reasonable, fair and just and
not arbitrary, whimsical or fanciful and it is for the Court to decide in the
exercise of its constitutional power or judicial review whether the
deprivation of life or personal liberty in a given case is by procedure, which
is reasonable, fair and just or it is otherwise. The law of preventive detention
must, therefore, pass the test not only of Article 22 but also of Article 21...‖77

The spectrum of above-stated interpretation was expanded in Pandit Parmanand's case

that ‗life‘ was not limited to death but the dignity continued even after death. Not lowering
the dead body for half an hour after having executed the death sentence amounted to
violation of right to live with human dignity.78

The next axiom of prison justice is the Court‘s continuing duty and authority to ensure
that the judicial warrant which deprives a person of his life or liberty is not exceeded,

74
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
75
AIR 1981 SC 746.
76
AIR 1978 SC 597.
77
Francis Coralie v. Delhi Administration, AIR 1981 SC 746.
78
Pandit Parmanand v. Union of India, (1995) 3 SCC 248.

20
subverted or stultified. It is a sort of solemn covenant running with the power to sentence
in Charles Shobraj's case the Court went on to observe that:79

―Another jurisdictional facet may be touched upon in view of the widely worded
relief sought to treat Sobraj in a humane and dignified manner, keeping in view the
adverse effect of` his confinement upon his mental and physical conditions. The
penological goals which may be regarded as reasonable justification for restricting
the right to move freely within the confines of a penitentiary are now well- settled.
And if prisoners have title to Article 19, 21 and 14 rights, subject to the limitation
we have indicated, there must be some correlation between deprivation of freedom
and the legitimate functions of a correctional system. It is now well-settled, as a
stream of rulings of Courts proves, that deterrence, both specific and general,
rehabilitation and institutional security are vital considerations. Compassion
wherever possible and cruelty only where inevitable is the art of correctional
confinement. When prison policy advances such a valid goal, the Court will not
intervene officiously.‖

There is no dispute to the fact that prisoners are not wholly denuded of their
fundamental rights. However, their liberty is, in the very nature of things,
circumscribed by the very fact of their confinement so their interest in this limited
liberty is allthemore substantial.80

1.1.3.3 Right against Inhuman Treatment of Prisoners

Human rights are part and parcel of human dignity. The Supreme Court of India has
taken a serious note of the inhuman treatment on prisoners in various cases and has
issued appropriate directions to prison and police authorities for safeguarding the rights
of the prisoners and persons in police lock–up. The Supreme Court read the right against
torture into Articles 14 and 19 of the Constitution. The Court observed that, “the
treatment of a human being which offends human dignity, imposes avoidable torture and

79
Charles Shobraj v. Superintendent, Tihar Jail, AIR 1978.
80
DBM Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 and Sunil Batra v. Delhi Administration,
AIR 1978 SC 1675.

21
reduces the man to the level of a beast would certainly be arbitrary and can be questioned
under Article 14.” In Raghubir Singh v. State of Bihar81, the Supreme Court expressed its
anguish over police torture by upholding the life sentence awarded to a police officer
responsible for the death of a suspect due to torture in a police lock – up. In Kishore
Singh v. State of Rajasthan82 the Supreme Court held that the use of third degree method
by police is violative of Article 21.

1.1.3.4 Prisoner’s right to seek compensation

In Rudul Sah v. State of Bihar And Another 83 , upon being released from Tihar jail
fourteen years after his acquittal the petitioner challenged this inordinate delay in his
release. On the other hand, his insanity was claimed to be the basis of such inordinate
delay. The Court observed that, "since no data was produced to show that the prison
authorities had a reasonable basis for either declaring the prisoner insane or for detaining
him on that account and neither any measures were taken to cure him, so it could be
deduced that the ground of his insanity was an afterthought." The Court thoughtfully
granted a compensation of Rs. 35,000/- as an analgesic to the petitioner and specifically
stated that, "a suit for compensation over and above this amount would lie in the
appropriate Court."

1.1.3.5 Prisoners’ Right to be Interviewed

In Sunil Batra v. Delhi Administration, 84 the Supreme Court held that, "lawyers
nominated by the District Magistrate, Session Judge, High Court and the Supreme Court
will be given all facilities to interview, right to confidential communications with
prisoners, subject to discipline and security considerations. Lawyers shall make
periodical visits and report to the concerned Courts results of their visits."

81
1987 AIR 149.
82
1954 Cri L J 1672.
83
AIR 1983 SC 1086.
84
AIR 1978 S.C. 1675.

22
In Francis Coralie Mullin v. The Administrators, Union Territory of Delhi,85 a British
national, arrested and detained in Central Jail, Tihar, petitioned the Court challenging the
constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of
Detention Order. As per the sub clauses, in order to arrange an interview, her lawyer was
required to obtain prior appointment from the District Magistrate, Delhi and the interview
could take place only in the presence of a Customs Officer. This procedure for obtaining
interview caused considerable hardship and inconvenience and there were occasions
when, even after obtaining prior appointment from the District Magistrate, Delhi, her
lawyer could not have an interview with her since no Customs Officer remained present
at the appointed time. Further, she was allowed to meet her daughter aged about five
years only once in a month.

The Supreme Court held sub-clauses (i) and (ii) of clause 3(b) to be violative of Articles
14 and 21. The detenue was permitted to have at least two interviews in a week with
relatives and friends at any reasonable hour on obtaining permission from the
Superintendent of the Jail. The Court further held that a detenue was entitled to have
interview with her legal adviser at any reasonable hour during the day after taking
appointment from the Superintendent of the Jail. The interview need not necessarily take
place in the presence of a nominated officer of Customs/Central Excise/Enforcement but
if the presence of such officer can be conveniently secured at the time of the interview,
then such officer can watch the interview but not be within hearing distance.

1.1.3.6 Rights of Women Prisoners

Women prisoners also have rights. They cannot be debarred from their basic human
rights and freedoms guaranteed by the Constitution of India. The Supreme Court in the
case of Sunil Batra v. Delhi Administration86 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 court process casts the convict into the prison system and the deprivation of his

85
AIR 1981 SC 746.
86
(1978) 4 SCC 409.

23
freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to
a social good. The court has a continuing responsibility to ensure that the constitutional
purpose of the deprivation is not defeated by the prison administration."

There are a number of rights of women prisoners which are provided by different
committees appointed for prison reforms and also by United Nations. These rights must
be incorporated in the Prison Act 1894. Since, Prisons is a State subject under Entry 4 of
the State Subjects List of the Seventh Schedule to the Constitution of India hence, the
management and administration of prisons come under the domain of the State
Governments. Thus, the respective governments while making Prison Manuals should
consider all the provided guidelines. Some of the Constitutional and Statutory rights of
women prisoners in India are discussed as under:

1. The search and examination of the female prisoners shall be carried out by the Matron
under the general or special order of the Medical Officer;87

2. The female prisoners have the right to live separately from the male prisoners. Section
27(1) of the Prison Act 1894 lays down that, "in a prison containing female as well as
male prisoners, the females shall be imprisoned in separate buildings or separate parts of
the same building, in such a manner as to prevent their seeing or conversing or holding
any intercourse with the male prisoners." This right is also ordained by Rule 8(a) of
Standard Minimum Rules for the Treatment of Prisoners.

3. The Standard Minimum Rules for the Treatment of Prisoners provide under Rule 53(1)
that, "in an institution for both men and women, the part of the institution set aside for
women shall be under the authority of a responsible woman officer who shall have the
custody of the keys of all that part of the institution. (2) No male member of the staff
shall enter the part of the institution set aside for women unless accompanied by a woman
officer. (3) Women prisoners shall be attended and supervised only by women officers.
This does not, however, preclude male members of the staff, particularly doctors and
teachers, from carrying out their professional duties in institutions or parts of institutions
set aside for women."

87
The Prison Act, 1894, (Act IX of 1894) s. 24 (3).

24
4. The Standard Minimum Rules for the Treatment of Prisoners provide under Rule 23
(1) provides that, "in women‘s institutions there shall be special accommodation for all
necessary pre-natal and post-natal care and treatment. Arrangements shall be made
wherever practicable for children to be born in a hospital outside the institution. If a child
is born in prison, this fact shall not be mentioned in the birth certificate. (2) Where
nursing infants are allowed to remain in the institution with their mothers, provision shall
be made for a nursery staffed by qualified persons, where the infants shall be placed
when they are not in the care of their mothers."

1.1.3.7 Supreme Court Guidelines for Children of Women

Prisoners

On 13th April, 2006, a three Judges Bench in R.D. Upadhyaya v. State of A.P. & Ors88
held that ―children of women prisoners who are living in jail require additional
protection‖. ―In many respects they suffer the consequences of neglect‖, the Bench said
and accordingly issued directions so as to ensure that the minimum standards are met by
all States and Union Territories vis-à-vis the children of women prisoners living in
prison. The judgment refers to the existence of around 12 laws, ranging from the
Guardian and Wards Act and Child Marriage Restraint Act to the Juvenile Justice Act
and Immoral Traffic (Prevention) Act which make provisions for the benefit of children.
The court took note of the national policy for children, directing the state to provide
adequate services for children both before and after birth, and during the growing stages,
for their full physical, mental and social development. The policy suggests a
comprehensive health programme, supplementary nutrition for mothers and children,
promotion of physical education and recreational activities, special consideration for
children of weaker sections, and the prevention of child exploitation.

The Court directed the states and union territories to provide information on the number
of female under trial prisoners, along with the nature of the offence for which they had
been detained. Also, period of detention, number of children in jail with their mothers,
number of convicted female prisoners and their children, facilities available at the jail for

88
(2007) 15 SCC 337.

25
taking care of children and the age up to which a child was permitted to stay with the
mother in jail. The states and union territories complied with the request.

1.2. Problem Profile

"Prisons are built with stones of law and so it behoves the Court to insist that, in the eye
of law, prisoners are persons, not animals, and punish the deviant guardians of the prison
system where they go berserk and defile the dignity of the human inmate. Prison houses
are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials
dressed ill a little, brief authority when Part III is invoked by a convict. For when a
prisoner is traumatised, the Constitution suffers a shock. And when the Court takes
cognizance of such violence and violation, it does, like the Hound of Heaven, but with
unhurrying chase and unperturbed pace, deliberate speed, and majestic instancy follow
the official offender and frown down the outlaw adventure." This quoted piece is from
the lucid judgment penned by the great judge of the Supreme Court of India and a
champion jurist of human rights Mr. Justice V R Krishna Iyer, in the case of Sunil Batra
v. Delhi Administration,89 which is the guiding torch for all those who officially deal
with the prisoners.

The concept of prison system can be observed from two paradigms, namely as the mode
of punishment and as the mode for punishment; and the two are mutually exclusive. The
subject of ‗prison reforms‘ is the domain of the first paradigm, where one views
imprisonment as punishment and not as a mode for carrying out another punishment in
the sense that curtailment of liberty in itself is recognised as a legally sanctified
punishment and any further infliction in the form of deliberate or callous deprivation of
humane conditions in jails is an unconstitutional aggression on the prisoner.

"Prisoners are peculiarly doubly handicapped. For one thing, most prisoners belong to the
weaker segment facing problems of poverty, illiteracy and the like. Secondly, the prison
house is a walled-off world which is incommunicado for the human world, with the result
that the inmates are invisible, their voices inaudible, their injustices unheeded. So it is

89
AIR 1989 SC 1579.

26
imperative, as implicit in Article 21 of the Constitution of India that life or liberty shall
not be kept in suspended animation or congealed into animal existence."90

Imprisonment is increasingly the main recourse of the criminal justice system and
criminal justice policy worldwide. 91 Prisons in India like elsewhere across the world,
constitute a colossal social organisation. In India, existence of jails is an ancient
phenomena going back to the Vedic period where prisons were mainly considered as the
house of captives. Integral part of the larger criminal justice system, jails have always
extended as an invaluable contribution in upholding the rule of law and, thereby, in
maintenance of law and order, peace and tranquility in society. Objectives behind
imprisonment traversed across long distance, starting with incarceration, deterrence,
penance, correction, reformation and finally till rehabilitation. As of now, prisons are
expected to embark on human engineering, influencing and modifying perceptions,
attitudes and behavior of those who come into their charge.

Under the Constitution of India, Prison is a state subject according to item number 4 in
the State List (List-II) of the seventh schedule to the Constitution of India. This means
that there is no legislation passed by the Parliament of India that provides for a uniform
set of rules for correctional management in India. As a result, every state has its own
Prison Manual for this purpose. Punjab Jail Manual is the law governing Superintendence
and Management of Jails in the state of Punjab. Besides these, there are catena of judicial
pronouncements that lay guidelines for the welfare of prisoners.

According to Article 246 (3) of the Constitution of India, "the legislature of any state has
the exclusive power to make laws for such state or any part thereof with respect to any of
the matters enumerated in the List II in the seventh schedule." However, Article 252 of
the Constitution provides that, "two or more states may by resolution in their respective
state legislatures authorise Parliament, to enact a central legislation on a state subject."
The Union of India can thus consider enactment of law relating to ‗prisons‘, only on
receipt of requests from two or more states. The report of the Correctional Administration

90
Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488.
91
Brian Tkachuk & Roy Walmsley, World Prison Populations: Facts, Trends, and Solutions 3 (United
Nations Programme Network Institutes Technical Assistance WorkshopBackground Paper), available at
http://www.heuni.fiuploads/6mq2zlwaaw3ut.pdf. (last visited on 24-07-2014).

27
Division, Bureau of Police Research and Development, Ministry of Home Affairs, the
Central Government in 2003 requested the State Governments to pass resolutions under
Article 252 of the Constitution for enactment of a new Prisons Act to replace the existing
Prisons Act, 1894, but did not receive the requisite response from the State Governments.
This placement of the subject of prison system in the State List of the seventh schedule to
the Constitution is the root cause of immense disparity, in the manner in which different
prisons in the country are governed owing to differences in different socio-economic
conditions of each state.

In India a number of committees, commissions, jurists, criminologists, authors and even

judicial pronouncements extended vast range of recommendations and suggestions
towards reforms in prison system, but they were not of much patent avail. Condition of
prisoners in India continues to be miserable, if examined with the first above mentioned
paradigm that treats imprisonment as punishment and not as a mode for carrying out
another punishment. During the period of 1970-80 India witnessed various widespread
agitations by the prison staff as well as prison inmates demanding improved service
conditions and improved living conditions in jails; the agitations also turned violent in
some states and union territories. So, the Government of India, taking stock of the
situation set up through the Ministry of Home Affairs, the All India Committee on Jail
Reforms on 25 July 1980 under the chairmanship of Mr. Justice Anand Narain Mulla.
With its terms of reference spread across nine clauses ranging from review of laws
governing the prison managements, to recruitment policies, to living conditions in jails,
to systems of open air prisons, remissions and specialized treatments for women,
juveniles and the sick, the committee was specifically asked to look into the affairs of
Tihar Jail. Three years of extensive research by the Mulla Committee culminated into a
two volume historical document in the form of report in the year 1983.

Later, under the directions of the Supreme Court of India in the case of Ramamurthy v.
State of Karnataka, 92 the task of looking into status of implementation of the
recommendations of Justice Mulla Committee was assigned by the Ministry of Home
Affairs to the Correctional Administration Division (that had been created in the year

92
AIR 1997 SC 1739.

28
1995 in the Bureau of Police Research and Development, Ministry of Home Affairs),
which started its work in the month of June, 2001 and came out with its report in the year
2003. The 2003 report read the recommendations of the 1983 Mulla Committee report
into two categories, namely, the goal oriented recommendations and the actionable
recommendations; the latter was further sub-divided into the recommendations for the
Government of India and the recommendations for the States and the Union Territories.
Relating to the actionable recommendations, a detailed questionnaire was prepared and
sent to all the states and the union territories, who responded to the same and on the basis
of computerised tabulation, recommendation wise report was prepared by the
Correctional Administration Division.

Recommendations of Justice Mullah Committee to formulate National Policy on Prisons

and to embody the same in Part IV of the Constitution and also for inclusion of the
subject of prisons and allied institutions in the Concurrent List of the seventh schedule of
the Constitution of India were not accepted by the Government. This report is a classic
exhibit of the non-serious manner in which such scholarly researched prison reform
recommendations have been dealt with. Despite the aforesaid, one has no option but to
keep raising concerns and suggestions towards reform.

Examining this issue from the perspective of women inmates one comes across a number
of issues that need to be addressed. The prison systems are primarily designed and run by
men for the incarceration of men.93 In every country of the world, women are a small
minority of those incarcerated. As a result, they find themselves held in facilities and
under conditions that, at best, have been poorly adapted for them from the male model94
or, at worst, are the same as those for men. Yet, women have very different needs from
men; they have specific health needs for gynecological and obstetric care95; they are more

93
Roy Walmsley, World Female Imprisonment List: Women And Girls In Penal Institutions, Including
Pre-Trial Detainees/Remand Prisoners (2006), available at http://www.unodc.org/pdf/india/womens-
corner/women prisonlist.2006.pdf (last visited on 23-08-2014).
94
M.L. Lyke, 'System Broken for Females in Jail in World Designed for Men, Too Few Services Available,
Seattle Post Intelligencer, Mar. 6, 2003, at A14 quoted in Jenni Gainsborough, "Women in Prison:
International Problems and Human Rights Based Approaches to Reform", 14 Wm. & Mary J. Women
&L.271 (2008).
95
Ibid.

29
likely to have been the primary caretakers for children before their incarceration96 and
many give birth while in prison; they are particularly vulnerable to sexual and physical
abuse97 and have often been the victims of abuse before coming to prison; they are more
likely to be ostracised than men in the same situation when they try to return to their
families and communities.

There are many similarities in the problems faced by women prisoners throughout the
world. These include problems in their lives prior to imprisonment, the conditions they
face in prison, and the particular issues they face as they attempt to reintegrate into their
communities after imprisonment. Whatever the country or continent, the women found in
prison are predominantly those at the most impoverished end of the social spectrum who
have led a life of social exclusion and abuse; they are young; a high proportion have
experienced violence or sexual abuse98; and many are mothers with dependent children.

Problems become even more complex when a woman in prison is pregnant and gives
birth while in custody. Women who are pregnant in prison or jail have particular health
and nutrition needs as well as requirements for dress, exercise and education about
pregnancy and childbirth.

The issue that arises when a mother either has a young baby at the time of her
incarceration or gives birth while imprisoned is how to decide what is in the best interests
of the child. The problems that are peculiar to a woman's status as the primary caretaker
of her family and children are also addressed by many of the Conventions. The notion of
family, the human right to be part of a family, and the right to have that status protected is
a core principle expressed in Article 16 of the Universal Declaration of Human Rights.
Further, "[m]otherhood and childhood are entitled to special care and assistance."99 The
importance of taking care of children is also clear in the International Convention on
Civil and Political Rights: "[e]very child shall have ... the right to such measures of

96
Prison Reform Trust, Bromley Briefings: Prison Factfile 16 (2007), available at
http://www.prisonreformtrust.org.ukluploads/documents/factfilel807o.pdf (last visited on 23-08-2014).
97
Natasha A. Frost, Judith Greene et al., Inst. On Women & Crim. Just., Hard Hit: The Growth In The
Imprisonment Of Women, 1977-2004 22 (2006).
98
Vivien Stern, A Sin Against The Future: Imprisonment In The World 138 (1998).
99
The Universal Declaration of Human Rights, Art. 25.

30
protection as are required by his status as a minor."100 The Convention on the Rights of
the Child particularly emphasizes this principle: "[i]n all actions concerning children ...
the bests interests of the child shall be a primary consideration" and "[s]tates Parties
undertake to ensure the child such protection and care as is necessary for his or her
wellbeing."101

The placement of prisons also presents problems in trying to keep families in touch. In
state systems, prisons are frequently placed in rural areas far removed from the urban
centers where most women lived prior to incarceration.102

The Indian judiciary has played a significant role in protecting the interests of prisoners.
There are a catena of judgments that support this fact. Specific to the issues concerning
women inmates, the Apex Court gave detailed instructions in the case of Sheela Barse v.
State of Maharashtra103 to the concerned authorities for providing security and safety of
women in police lock- ups. They should be kept in separate lock- ups and not in the same
in which the male accused are detained, that they should be guarded by female constables
only and also that their interrogation should be conducted in the presence of female
officers. But the Honourable P&H High Court held, in the case of Dildar Singh v. State of
Punjab,104 that if a husband and a wife were undergoing trial for a criminal offence and
were detained in separate cells in the jail then their prayers to be kept in the same cell
should be allowed. Further, the judgment of the apex court in R. D. Upadhyaya v. State of
AP and Others105 deals in great detail with one, very pertinent, issue relating to women
prisoners i.e. motherhood.

Undoubtedly, these are very valuable guidelines and have played a significant role in
protecting women detainees but these are the only two sets of guidelines specifically

100
International Convention on Civil and Political Rights, Art. 24.
101
The Convention on the Rights of the Child, Art. 3.
102
Susan F. Sharp & M. Elaine Eriksen, Imprisoned Mothers and Their Children, in Women In Prison 119,
131 134 (2003).Tracy Huling, Building a Prison Economy in Rural America, in Invisible Punishment: The
Collateral Consequences Of Mass Imprisonment 197 (2002) quoted in Jenni Gainsborough, "Women in
Prison: International Problems and Human Rights Based Approaches to Reform", 14 Wm. & Mary J.
Women &L.296 (2008).
103
AIR 1983 SC 378.
104
1994 (3) Recent CR 62 (P&H).
105
AIR 2006 SC 1946.

31
regarding women prisoners. Hence, all that the law in India provides for women prisoners
is that they should be kept in separate lock-ups and what kind of treatment should be
accorded to their children during their stay in jails.

That is all!!! There is a long tunnel, dark and silent, regarding what happens to women
prisoners when they are under the superintendence of jail authorities. Is equal privacy
accorded to them at that time also? Are they insulated from threat of abuse and
maltreatment within four walls of jail? Are they in a position to continue to be a
functional element of their families respective families?

It cannot be said that the answer to all the above mentioned questions and their likes is
necessarily in negative but it can be affirmed that there are inadequate resources to
examine all these issues. With this objective in mind, the researcher desires to understand
the real problems faced by women prisoners specially in the state of Punjab, it being her
native state.

1.3. Significance of the Study

The issues relating to women prisoners are at the helm of Criminal Justice and Human
Rights. On one hand, stands a firm fact that there are compelling reasons for a person
being imprisoned and on the other is a very pertinent question that whether a person loses
significance just because now he/she is behind bars. Is it no more requisite for the state to
protect and preserve their right to life and dignity?

Both the arguments have a very strong foothold in their respective operational areas. This
problem investigates a phenomenon that has the semblance of human rights jurisprudence
and of penitentiary jurisprudence.

Punishment is the only weapon which enables achievement of the objective of deterrence
and also leads to a system of reformation. Penitentiary jurisprudence has developed
manifold over a period of time. From the starting point of barbaric and cruel form,
punishment resting on the shoulders of retribution in the form of capital punishment by
means of pillory, stoning, constructing into a wall or throwing under the leg of the
elephant to that of social banishment to that of deterrence by awarding death penalty by

32
less barbaric means to the current flow reformation as the primary objective of
punishment which has the undercurrent of expiation in the light of the fact that
victimology is gaining shape and sound in becoming an inevitable element of the
foundation of criminal justice system. So, imprisonment servers a two- fold purpose,
both, of deterrence as well as of reformation.

This, already very sensitive issue gets complicated further when gender jurisprudence
enters the court as the third front. Now, all questions regarding safety, labour, hygiene,
sanitation etc. of the prisoners have another edge to themselves.

The Prisons Act, 1894 is the existing law governing the management and administration
of prisons in India. This Act is based on deterrent principles so it is concerned more with
prison management than treatment of prisoners and gives more consideration to prison
offences and punishments than to their effect. The Act describes segregation of prisoners
in prisons. Fifth chapter of the Act deals with 'discipline of prisoners'. Prisoners have
been classified under various heads in this chapter. Hence, the objective as per this Act is
to maintain discipline amongst the inmates. Section 27 of the Prisons Act, 1894 provides
for separation of prisoners.

Also, Rule 8 of Standard Minimum Rules for the Treatment of Prisoners, 1955 adopted
by the UN, states that different categories of prisoners shall be kept in separate
institutions or parts of the institution taking account of their sex, age, criminal record, the
reasons for their detention and necessities for their treatment.

After commencement of the Constitution of India, Prison Management is the subject

matter of state list as per Schedule VII of the Constitution of India. This means that there
is no legislation passed by the Parliament of India that provides for a uniform set of rules
for correctional management in India. So, every state has its own Prison Manual for this
purpose. Punjab Jail Manual, 1996 is the law governing Superintendence and
Management of Jails in the State of Punjab. Besides these there are catena of judicial
pronouncements that lay guidelines for the welfare of prisoners.

33
But despite of all these there are various unsettled issues relating to a woman prisoner
that need to be addressed. Although the judgment of the apex court in R. D. Upadhyaya
v. State of AP and Others 106 deals with one, very pertinent, issue relating to women
prisoners i.e. motherhood. This is the only judgement of the Supreme Court that deals
with women prisoners exclusively.

Further, the judgment in Sheela Barse's case,107 directs for selection of lock-ups in good
localities where only female suspects should be detained and also that their interrogation
should be conducted in the presence of female officers.

Undoubtedly, these are very valuable guidelines and have played a significant role in
protecting women detainees but these are the only two sets of guidelines specifically
regarding women prisoners. Hence, all that the law in India provides for women prisoners
is that they should be kept in separate lock-ups and what kind of treatment should be
accorded to their children during their stay in jails.

Thus, the significance of this study lies in the fact that it operates upon the sociology of
law qua the element of prisons dedicated to the women inmates in the jails of state of
Punjab in order to analyse and understand whether the essence of protective and
humanitarian international commitments and judicial directions is actually given a life-
breath in the state of Punjab in the present- day scenerio.

1.4. Objectives of the Study

1. To study the rights available to women prisoners in India.

2. To study the position of women prisoners and problems faced by them in India
with special reference to the State of Punjab.
3. To study the role of judiciary and the problems behind implementation of the
guidelines of the Courts regarding women prisoners..

106
AIR 2006 SC 1946.
107
AIR 1983 SC 378.

34
1.5. Research Hypothesis

Unsatisfactory implementation of existing laws governing women prisoners is

responsible for various issues related to them in the State of Punjab.

1.6. Research Methodology

The researcher has focused specifically on the issues relating to women prisoners. The
main purpose of this research work is to study, examine and analyse relevant provisions
of existing national laws relating to prisons. It includes the study of genesis of Prisons,
structure, set- up, working of Correctional Management authorities, comparison of the
same with that of other countries like USA, the UK etc and study of various landmark
cases on the subject. All this analysis would lay greater stress upon women inmates of
jails that too especially in the State of Punjab. So, material has be collected from, both,
primary as well as secondary sources.

1.6.1. Nature of Study

The present study is empirical as well as doctrinal.

1.6.2 Universe of the Study

This study is based on empirical study conducted by collection of data in the form of
responses to interview schedule by women inmates in all such jails in the State of Punjab
wherein the they are detained. The list of these jails is as follows:

 Central Jail, Gurdaspur

 Central Jail, Shri Amritsar Sahib

 Central Jail, Ferozpur

 Central Jail, Faridkot

 Central Jail, Patiala

 Central Jail, Kapurthala

35
  Central Jail, Bhatinda

 Central Jail, Hoshiarpur

 Women's Jail, Ludhiana

 New Jail, Nabha

 District Jail, Mansa

 District Jail, Ropar

 District Jail, Sangrur

1.6.3 Sample Size

At the time of data collection, total number of women prisoners' population was about
1100. Researcher decided to interview 50 inmates per jail by adopting random sampling
method but was not able to accomplish this target as in two jails the maximum number of
inmates was less than 50 at the time of interview. Another reason for selecting random
sampling was due to variation in number of women prisoners population in different jails.
As a result, the researcher was able to interview 604 women as a good number of inmates
were absent at the time of interview due to 'mulakat' with their family members or
'chutti'. Hence, the sample size for the present study is 604 respondents.

1.6.4 Method of Data Collection

Data has been collected from both primary and secondary sources. Keeping in mind the
subject and objectives of the study, researcher adopted the schedule method and utilised
the structured interview schedule technique to collect primary data from the women
prisoners as it was required for the study. The present chapter is based only on the data
collected by using this technique and analysis thereof.

36
1.6.4.1 Collection of Primary data
1.6.4.1.1 Construction of Interview Schedule

A structured interview schedule containing both open- ended and closed ended questions
was constructed in the light of the objectives and the research questions of the study.
Interview schedule consisted of 148 questions categorised into 14 segments as follows:

A. Introductory or Socio Economic profile

B. Criminal Profile

C. Living Conditions

Accommodation

Toilets, Bathing, Washing Facilities

Preparation

Food

Diet and quality

Drinking Water and Water for Other uses

Sanitary Conditions in the jails

Overall cleanliness Drainage Garbage

Disposal

D. Health and Hygiene

E. Inmate – Staff Interface
F. Children of inmates
G. Labour and Wages
H. Meetings and Interviews (along with pay-phone facilities)
I. Legal Aid
J. Inspections and Visits
37
K. Parole
L. Security within prison

General security arrangements

Dominance and bullying in prison culture

Abuse by

Co-inmates Prison Staff

M. Grievance Redressal Mechanism

N. General Observation of prisoners

Through non-participant observation tool, researcher made the efforts to know more
about how women prisoners live in prison, their behaviour with the staff and co-inmates,
their daily routine etc.

1.6.4.1.2 Processing and Analysis of Data/Statistical Tool

After the completion of data collection the entire data collected through the interview
schedule was checked for any discrepancies and incompleteness. Most of the questions in
each interview schedule were pre-coded. After checking the completeness and accuracy
of the data all the other questions which were not pre-coded, they were provided suitable
codes. Qualitative data was converted into quantitative data by providing the suitable
numerical codes. After providing the relevant codes, the entire quantitative data was
filled on the code sheet prepared by the researcher herself using MS- Excel. Thereafter,
data was processed with the help of the IBM SPSS (Statistical Product and Service
Solutions) software that offers advanced statistical analysis, a vast library of machine-
learning algorithms, text analysis, open-source extensibility, integration with big data and
seamless deployment into applications. Its ease of use, flexibility and scalability is
responsible for the researcher to have opted to use it. The data was processed in the
software by a professional data analyst.

38
1.6.4.1.3 Representation of Data

In order to represent the processed data, univariate, bivariate and multivariate tables are
used. These tables are constructed with the help of the computer. For graphic
representation of data, bar and pie charts are also used where needed. Percentage of all
the responses is taken into account. Descriptive analysis is used to convert the numerical
information into the qualitative facts. For all the inter- connected questions cross-
tabulations were also calculated and have been adequately represented along with chi-
square tests wherever relevant. Since, comprehensive analysis of the data collected by the
researcher has been done. So, she intends to represent these analysis with brevity and in
pursuance of the same this chapter has been divided into the following four segments:

A. Univariate/ Bivariate/ Multivariate Tabular representation expressing data in

figures and percentages along with chi- square analysis wherever relevant.
B. Graphical representation of comparative data by using bar graphs and pie- charts.
C. Cross- tabulation analysis of responses to co-relevant questions with tabular
representation.
D. Observations of the researcher to describe the numerical data in order to convert it
into qualitative data.

1.6.5. Collection of Secondary Data

Secondary data for the study has been collected from both the published and unpublished
sources and from internet. Great amount of support has been taken from various
legislations, jail manuals, reports and studies conducted by International, National, State
and local level bodies/ organisations on this subject, judicial pronouncements, literature
available in the form of legal commentaries, legal text books, encyclopedia, dictionaries,
digests, treatises, research papers, newspapers and unpublished research work/ thesis in
the subject. Substantive help has been taken from various websites, e- journals and e-
books as well. The researcher also visited the libraries of various universities as well as
district and bar libraries.

39
1.7. Review of Literature

The doctrinaire study is in the form of secondary data/material collected from various
sources like books, manuals, dictionaries, articles in newspapers, journals, law reviews,
websites and judicial pronouncements of Indian as well as foreign courts.

As defined in Section 3 (1) of the Prisons Act, 1894 ―prison‖ means any jail or place used
permanently or temporarily under the general or special orders of a State Government for
the detention of prisoners, and includes all lands and buildings appurtenant thereto, but
does not include—

(a) any place for the confinement of prisoners who are exclusively in the custody
of the police;
(b) any place specially appointed by the State Government under Section 541 of
the Code of Criminal Procedure, 1882; or
(c) any place which has been declared by the State Government, by general or
special order, to be a subsidiary jail.

Thus, prison is a place specifically declared to be so by the concerned state government.

As it can be noted that the law governing prisons in India dates back to 1894 making it a
legacy of the British rule. What is surprising is that no substantial changes have been
made in this law let alone re-framing of this out-dated legislation.

Keeping in mind the above- stated fact and its relevance in this study, the researcher
fervently moved across the work of Dr. Krishna Pal Malik titled 'Penology, Victimology
& Correctional Administration in India'108 which is divided into three parts covering a
wide area of issues like India‘s international commitment towards penology, theories of
punishment, principal forms of punishments in IPC and under special laws, capital
punishment and punishment of imprisonment etc. In its second part dedicated to
Victimology, it deals with theories of victimology, necessity to compensate the victims of

108
Dr. Krishna Pal Malik, Penology, Victimology & Correctional Administration in India (Allahabad Law
Agency, Faridabad, Reprint of First edn., 2012).

40
crime and human rights, treatment and specific vicitimisation of children, women and
SCs/STs etc whereas the third part of the book carries guidelines for correctional
administration in India and is of great importance for the instant task at hand. traces the
journey of prison institutions in India since Vedic era. It gives account of situations
during the Epic age of Ramayana and Mahabharta. It also explains various forms of
punishment that were prevalent during ancient era. By explaining the account of scholars
like Yajnavalkya, Mithakshara and Manu, the author describes different forms of
punishment that were inflicted and that the administration of justice greatly depended
upon different theories of punishment that were in practice.

During Middle Ages period Islamic tenets of criminal law were in force and the author
summarily describes classification of punishment under various heads.

It is clearly explained by the author that the modern prison administration in India is a
result of British activity and their rule over India. Giving an account of Lord McCauley‘s
role and contribution in assigning imprisonment as the most frequently provided mode of
punishment for various offences under IPC, the author very intelligently lays the
foundation of his claim that it is in fact, the British rule, that led to growth and
development of institution of prisons in India.

A very detailed account of various Commissions and Committees appointed by the

British Government through their rule is provided herein. Starting from the First
Commission on Prison Discipline in 1834 to introduction of Prisons Act of 1894, the
author takes the reader through a well paved path by giving an account of first Jail
Reform Committee, 1838, Second Jail Reform Committee 1862, Fourth Jail Commission,
1888 etc. The role of Indian Jail Committee, 1919-20 has been discussed in great detail
along with the impact of Govt. of India Act, 1919 on the institution of Jails. Thereafter,
the author gives a detailed account of various developments that took place after the
independence of India.

The author gives a meticulous account of the system of jail administration in India.
Prison Administration is a subject matter of List II of the Seventh Schedule of the
Constitution of India. Therefore, prison management is the responsibility of the

41
concerned State Government and the rules for the same are contained in the relevant Jail
Manuals of the States.

He explains that jails in India are categorised as Central Jails, District Jails, Special Jails,
Sub Jails, Women Jails and Open Prisons. The administration of these jails is carried out
by a hierarchy of officials with the Inspector General of Prisons at the top position in the
concerned State. The second important post is held by the Superintendent of Prisons who
is appointed by the State Government. He is in-charge of the jail for supervision and
control and is responsible to I.G.P. Then there is the office of Jailer who is subordinate to
the Superintendent and resides within the prison. He is responsible for safe custody of
records to be kept by the Superintendent, for the commitment of warrants and all other
documents confined to his care.

A brief account of various statutory provisions like Sections 27, 28, 29 and 30 of the
Prisons Act of 1894 is also provided for where the author also suggests other modes of
classification of prisoners besides these provisions for instance on the basis of their age,
gender, nature of sentence etc.

A voluminous account of various judgments of the Honourable Courts in India and

abroad for the protection and promotion of interests of prisoners can also be analysed in
this work. The author also specifically discusses the judgments qua women prisoners and
their children. Similar attention is given to various facilities to be provided to jail inmates
from time to time.

An account of various programmes and strategies applicable in different jails for

reformation and rehabilitation of prisoners is also available. The author states that various
character-building programs and courses on vocational education are contributing
towards rehabilitation of prisoners whereas for Non-Institutional Corrections he says that
grant of pardon, commutation of sentence, suspension of sentence and remission of
sentence are various modes of achieving the end of Non Institutional Corrections.

42
Prof. N.V. Paranjape's contribution 109 is of great value to the subject. He traces the
development of American Prison System, the British Prison System and the
developments in India after independence. The author gives a detailed account of various
landmarks in the development of American Prison System by discussing Penn‘s Charter,
1862; the Pennsylvanian System; the Auburn System; the Elmira Reformatory and the
Illionis Prison, 1933. Similarly, he gives an account of Prison Reforms in UK by
discussing the Act 1778, Transportation of British Prisoners to Colonies in America and
Australia, Standard Minimum Rules for Treatment of Prisoners, 1952; Contribution of Sir
Lionel Fox and the modern British system. A brief mention of Russian Prisons is also
there.

He also discusses the development of prisons in British India and also in the post-
independence India. Recommendations of Pakwasa Committee, 1949; All India Jail
Manual Committee, 1957; All India Jail Reforms Committee, 1980 and National Expert
Committee on Women Prisoners, 1988 are also discussed.

Herein, various problems of prisoners like overcrowding, discipline, health issues,

criminality amongst prisoners are also discussed. The author also gives a detailed account
of rights of prisoners by discussing rights of under-trial, regarding bar again handcuffing,
solitary confinement, custodial torture and judicial directives for prison administration in
our country.

The concept of Open Prisons has been very vividly discussed giving details of the same
all over the globe. An understanding of the same is relevant for achieving the objective of
social reintegration of the prisoners. Executive Clemency, Good Time Laws and
Indeterminate Sentence are various successful approaches for non-institutional correction
and are discussed herein. Parole and probation are also discussed zealously.

Another approach to understand the historical evolution and development of prison

systems in America, Britain and India is very well represented by J.P.S. Sirohi in his

109
Dr. Krishna Pal Malik, Penology, Victimology and Correctional Administration in India
281 (Allahabad Law Agency,Faridabad, Reprint 2012).

43
book titled ‗Criminology and Criminal Administration‘ 110 whereby the author gives a
detailed account of these. Jails and houses of correction were established in the American
colonies soon after settlement. The medieval period in the history of American colonies
witnessed an era when the offenders were mercilessly tortured and brutally treated. 111
The prison system itself was originally an experiment, tried out first in America as
substitute for such primary methods of punishment as execution, mutilation, flogging,
burning and other corporal punishments. Before 1682, the life in prisons was hard,
unbearable and painful. This led to severe criticism and a public opinion was gradually
mobilized against these inhuman methods of punishment. This eventually led to passing
of the Penn‘s Charter of 1682.112

The concept of Open Prisons is greatly appreciated by him. He also gives an account of
various human rights issues relating to prisoners. This work touches various segments of
genesis of prisons and of prisoners' life in a summary manner.

Transition of criminal justice system after advent of British rule in India is explained
capaciously by author Girish Kathpalia in his monumental work ‗Criminology and
Criminal Reforms.‘113 Besides this an account of Ancient Hindu Criminal Jurisprudence
and Islamic Jurisprudence per se is systematically laid out for the ease of readers. It is
categorically stated by him that Hindu philosophy always regarded the state of mind of an
individual as a decisive factor of moral conduct. It is this ethical philosophy that made the
ancient thinkers to propose that the offenders indulge in criminal behavior on account of
mental depravity. Stress of ancient criminologists was on treatment of delinquents by way
of their enlightenment through spiritual tenets including meditation and yoga that were
quite productive in minimising criminality while Muslim criminal jurisprudence treated
criminal law as a branch of private law, rather than public law. The underlying concept
was more of providing relief to the aggrieved, rather than imposing punishment on the
aggressor. Purpose of punishment even in cases involving offences against individuals
was to secure relief to the victim and not safeguarding the society by aiming for crime

110
J. P. S. Sirohi, Criminology and Criminal Administration (Allahabad Law Agency, Faridabad, Reprint of
Fifth edn., 2004.
111
J. P. Sirohi, Criminology and Criminal Administration 123 (2004).
112
Supra note 6.
113
Girish Kathpalia, Criminology and Criminal Reforms (Lexis Nexis, Gurgaon, First edn., 2014).

44
reduction.114
An understanding of all these three phases is of fundamental importance for this work
because it gives an insight into the necessity of having the institution of prisons.

Therapeutic reaction to crime and prison systems traces the journey of origin and growth
of prison system in America, Britain and India. While prison tribulations in India is
dedicated to various problems inside the prisons. The author, herein, discusses the issues
of overcrowding, indiscipline, violence, jail riots, sexual violence and health problems
and suggests that pragmatic approach towards solving these problem is the need of the
hour now.

Prison Reforms have been discussed sufficiently as a good length of this work is
dedicated to Constitutional and Legislative actions whereby contribution of various
Committees and Commissions since independence are critically examined. Judicial
activism qua jails finds a detailed mention herein whereas discussions on the relevance of
socio-legal regime on probation, parole, furlough, good time laws and open prisons.

N.K. Chakrabarti's work115 on this subject is another piece of praiseworthy work. It is a

collection of various articles of research carried out by different authors and
academicians dealing with various fragments of the subject. The paper titled ‗The Early
History of Modern Prison System‘ is helpful in understanding the growth of prisons
while the one titled ‗Correction under Prisons Act – Theory and Practice‘ explains that
correctional work means two things - prevention of crime and treatment of offenders. It
critically examines correction under Prisons Act.

The research paper titled ‗Open Peno Correctional Institutions‘ discusses in detail The
Declaration of Principles of the American Correctional Association (1960) and Open
Peno Correctional Institutions in Uttar Pradesh. Also, ‗Helping Prisoner‘s Families‘ inter-
alia discusses problems of female prisoners.

114
Girish Kathpalia, Criminality and Criminal Reforms 16 (Lexis Nexis, New Delhi, 2014).
115
N. K. Chakrabarti, Institutional Corrections in the Administration of Criminal Justice- 2 (Deep & Deep
Publications Pvt. Ltd., New Delhi, 1999).

45
Authors V.V. Devasia and Leelamma Devasia,116 discuss the problem of Community of
Convicted Murderers in Chapter 8 titled ‗Community of Convicted Murderers: An
Analysis of Prisons Sub-Culture and Prisionisation‘ by discussing prisons as a social
system. ‗Social Work with Offenders in Correctional Settings‘ discusses Correction as a
Social Work Process. Author lays stress on the importance of Social Case Work and
Social Group Work in Correctional Settings. While, ‗Probation as Correctional Treatment
of Offenders in the Community‘ gives an insight into aim and conditions of probation as
a Correctional Treatment by laying stress on Pre-Sentence Investigation.

Futher, ‗Parole: Philosophy and Operation‘ discuss various objectives of Parole, Parole
Supervision and Treatment in Parole and ‗Aftercare: A Correctional Process‘ discusses
nature and scope of aftercare and various techniques helping aftercare for instance
Manipulative Techniques and Executive Techniques.

Sudha Kaldate,117 has made an effort to discuss the problems of the convicted women
offenders. She has used both the empirical and the non-empirical method. She visited the
jails and correctional institutions of women offenders situated in states of Assam, Tripura
and West Bengal. During the visit to these jails and correctional institutions, she found
that female offenders are considered as a 'limited risk custodial liability' and their small
number in prisons is responsible for their needs being neglected. According to her,
physical state of most prison buildings is unsatisfactory. Custodial amenities for women
prisoners are unsatisfactory classification of prisoners was also non-existent in most
prisons. Medical diagnostic and care facility by full-time female doctors was absent in
many jails.

Besides physical infrastructure, she also found the lack of co-ordination between
correctional services and other agencies like law, probation and voluntary organizations
and women staff inadequate and under represented at all levels. Through the review of
published and unpublished literature she found that recommendation of the Indians Jails

116
V. V. Devasia and Leelamma Devasia, Criminology, Victimology and Corrections (Ashish Publishing
House, New Delhi, 1992).
117
Leelamma Devasia and V.V. Devasia, Female Criminals and Female Victims: An Indian Perspectives,
DATSONS Publishers and Publishers Distributors, Nagpur, 1987. pp. 221-229.

46
Reform Committee, 1919-20 have received little attention in various states and union
territories.

In order to improve the conditions of women offenders in India she suggested apart from
improvement in daily facilities, cleanliness and hygiene conditions, educational,
vocational and legal literacy programme should be introduced and carried on with all
seriousness. Voluntary bodies, women activities and lady advocates should be associated
by the prison officials. Reports of the committees constituted to consider the conditions
of women prisoners should be urgently implemented so that a women convict should
come out of prison as a responsible citizen. Those who want to improve the conditions of
women offenders should study and where possible personally inspect, prison conditions
in India as well as outside.

Dr. Surendra Sahai Srivastava, in his work118 on the same subject traces the history of
development of Prison System in America, England and India. The author specifically
talks about the role of Judiciary in Prison Reforms by enlisting various judgments of the
Supreme Court of India. He also critically examines the provisions of Prisons Act, 1894
regarding Maintenance and Officers of Prisons. A list of Prison Offences as provided
under the Act is also reproduced herein. Application and conditions of Probation in India
are also fruitfully discussed along with a good number of judicial decisions on the same.
Informative account of parole along with a brief mention of ticket of leave, concept of
good time laws, intermediate sentence, parole mechanism and supervision of the same in
India are also available in this work.

Nitati Roy Chaudhary's work 119 is another great repository on the subject. Scope of
reformation of prisoners under existing prison laws is of great importance to the current
study. The author begins with discussion on principles behind reformative prison laws

118
Dr. Surendra Sahai Srivastava, Criminology & Criminal Administration (Central Law Agency,
Allahabad, Third edn., 2007).
119
Nitati Roy Chowdhary, Indian Prison Laws and Correction of Prisoners (Deep & Deep Publications
Pvt. Ltd., New Delhi, 2002).

47
and mentions the views of Jeremy Bentham on the same. Then Standard Minimum Rules
for Treatment of Prisoners formulated by Amnesty International in 1955 and approved by
the United Nations in the same year are discussed besides other International Documents
on Prison Justice like the UDHR, Declaration on Protection from Torture, 1975 etc.
Following this the author discusses Rights of Prisoners in the USA and in England.

The next to be discussed is the reformation of prisoners under Indian Constitution by

giving an account of Constitutional provisions along with a myriad judicial decisions
regarding the same. This portion absorbs a great amount of discussion in this work.
Special mention of position of under-trials and detenues in Indian jails is also provided
herein.

Mukesh Garg and Nareshlata Singla,120 in this study researchers considered the rights of
women prisoners and highlighted the problems faced by them in the prison. They used
the non-doctrinal research method and divided the paper into the five parts. First part
contains general introduction about women in India. The second part describes various
constitutional provisions such as Article 14 and 15 that provide equal status to the
women. In the third part, researcher described the basic human rights, constitutional and
statutory rights available to the women prisoners. In the fifth part, discussion about the
problems faced by the women prisoners in the jails is made. According to researchers,
due to small numbers of women prisons, they have to face over-crowding which
generates other problems for them. Due to male-dominated prison system women
prisoners have to face shortage of proper necessities such as proper accommodation or
recreation facilities. They also did not get satisfactory legal aid in prisons. Therefore
researchers suggested that in order to prevent the problems faced by the women prisoners
the efforts should be made on war footing to reduce the strength of women under-trial
prisoners and for this purpose the procedure of plea bargaining should be adopted. Lok
Adalats should be organized frequently. Fast track courts should be substantially
amended. Panel of visitors should be appointed on permanent basis. The paper
vociferously states that the goal and aim behind awarding the punishment should be the
reformation and rehabilitation of the women prisoners.
120
Mukesh Garg and Nareshlata Singla, ―Right of Women Prisoners in India: An Evaluation‖ IJARMSS,
Vol. 1, No. 2, Aug. 2012, pp. 134-152.

48
1.8. Outline of the Study

The present work is chapterised into seven chapters wherein the researcher has given an
extensive account of all the matters relating to prisoners and prisons in general as well as
regarding women prisoners specifically. At the outset, the researcher discussed the
development of prison systems in USA and England because the modern prison system in
India is completely a legacy of the British regime. So, it was required that the basic
objectives behind prison policy should be understood since their inception.

In Chapter 2, titled as "Dynamics of Punishment and Growth of Prisons in India: A

Historical Account" the researcher has brought out a detailed account of the system of
punishments in India over different eras and under various rulers. The main highlight of
this chapter is how the ideologies of punishment continued to change over a period of
time. Ultimately, detailed description of steps taken by the British administration
regarding prisons has been provided. The post- independence era has been highlighted by
never-ending steps to bring out a uniform policy for prison administration in the country
whereby the researcher concluded that these policies were toothless tigers as they were
still existing only in black and white.

It is followed by Chapter 3 titled as "Protection of Rights of Women Prisoners around the

Globe: An Analytical Account of International Instruments" wherein the researcher has
brought out a detailed account of various international and regional instruments regarding
rights of prisoners. Efforts of the United Nations have been highlighted as various
instruments like the Standard Minimum Rules for Treatment of Prisoners, 1955 and their
amendment by the Bangkok Rules, 2010 have been discussed at length. Similarly
regional dominant legal systems like the European System, American System and the
African System have been analysed so far their stand on protecting women prisoners is
concerned.

Then in Chapter 4, titled as "Rights of Women Prisoners in India: National Legislative

Perspective with Special Reference to the Role of Judiciary" with Special Reference to
Role of Judiciary" the researcher has brought out a detailed account of legal provisions in
the Indian legal system for protection of women prisoners by listing out various statutory

49
provisions regarding the same. Article 21 having been extensively used by the Supreme
Court of India as a touchstone of position of prisoners in general and women prisoners
specifically has been tastefully discussed. A large number of rights emanating from
various decisions of the Courts in India have been categorically highlighted.

Bringing more insight into "System of Correctional Management in the State of Punjab"
in Chapter 5, the researcher has brought out a detailed account of legal provisions relating
to the system of management of prisons in the State of Punjab contained in the Punjab
Jail Manual, 1996 by meticulously bringing out the structure of Jail Management and
specific provisions dealing with different classes of prisoners with the objective of
understanding the duties of prison staff towards the inmates so that the corresponding
rights of the prisoners could be understood in a better manner as this study is based on the
actual situation of the women inmates in the jails of Punjab.

Actual examination of the hypothesis is carried out in Chapter 6 titled as "Issues of

Women Prisoners in the State of Punjab: A Socio- Legal Empirical Study in the State of
Punjab." In this segment of the work, the researcher has described the empirical study
conducted by her in thirteen prisons across the State of Punjab where women were
detained. A comprehensive analysis of the data collected by the researcher has been done.
She has represented it with brevity and in pursuance of the same this chapter has been
divided into the following four segments:

A. Univariate/ Bivariate/ Multivariate Tabular representation expressing data

in figures and percentages along with chi- square analysis wherever
relevant.

B. Graphical representation of comparative data by using bar graphs and pie- charts.

C. Cross- tabulation analysis of responses to co-relevant questions with tabular

representation.

D. Observations of the researcher to describe the numerical data in order to convert

it into qualitative data.

50
Finally, Chapter 7 is the "Conclusion and Suggestions" of this entire study wherein the
researcher has concluded her observations regarding the analysis of various national and
international legal provisions, judgments of the Courts and the results of the empirical
study. On the basis of these concluding remarks she has proposed very elaborate
suggestions categorised under relevant heads for brevity.

51