Navdeep Kaur, a 23 years old women activist was arrested on the 12th of January during the ongoing farm protest at the Singhu border, reports of her being assaulted and sexually abused in the custody prevailed throughout the country, which reminded us of the complexities which women prisoners face while being in custody. Physical, mental, and sexual tortures suffered by women are even more disturbing when they come from behind the bars.

Incidences of violence including sexual violence by inmates and authorities are reported all across the country every year. However, official reports remain underestimated due to fear in prisoners of retaliation as they are forced to stay in the same place as their perpetrators. Even in the cases of con-sexual sex, the cases are mainly of coercive sexual intercourse, the weak prisoner has to surrender in front of the powerful authoritative individual or she is left to bear the consequences in the form of torture, the restrained supply of necessities to count a few, so the consent becomes irrelevant behind the bars.

To raise a voice against such torture and getting justice is considered a rare case only. In the judgment of the State of Maharashtra vs C.K.Jain (1990 AIR 658)[i], in which a women prisoner was raped in police custody, regarding evidence, the Supreme Court emphasized that:

1. In such cases unless the testimony of the prosecution is unreliable, collaboration normally should not be insisted upon.
2. Secondly, the presumption is to be made that ordinarily, no woman would make a false allegation of rape.
3. Thirdly, delay in the making of the complaint is not fatal and quite understandable reasons exist for the delay on the part of the victim woman in making a complaint against the police. As far as the sentence is concerned there is no room for leniency, the punishment must be exemplary.

The Ministry of Women and Child Development issued a report Women in prison [ii]in 2018 reflecting the most basic issues faced by women in prisons and violence faced by women prisoners while being in custody was one among them. Multiple committees recommended measures to be taken to tackle this imminent issue.

Hon'ble Supreme Court in Christian Community Welfare Council of India vs Government of Maharashtra (AIR 2004 SC 7) [iii] held that:
women should not be arrested after sunset and before sunrise and only in the presence of lady constables. The Court directed the State Government to set up a committee to formulate a comprehensive scheme for police accountability to human rights abuse and make special provisions for female detainees.

This Right plays an important role in protecting female prisoners from any sexual harassment and unforeseeable tortures. The Ministry of Women and Child Development in 2018 in its report put forth multiple measures to dilute the issue to a good extent, if implemented, such as no male should be allowed to enter the female ward of the prison unless with a legitimate duty, after which he should record the reason for his visit in his record book.

There is to be the round-the-clock duty of female head wardens and female wardens. Women prisoners should not be made to leave their enclosure under any circumstances other than release, transfer, and attendance at court or on the order of the Superintendent for any other legitimate purpose; the process of searching female prisoners at the time of admission is to be carried out with due regard to decency in a private space by a female staff member.

However, we have several reports where female prisoners have reported being humiliated or violated during this process; if a case of sexual abuse or other forms of violence faced by a prisoner is brought to light, she must be guided to seek legal recourse and lodge a complaint. A prisoner can make a complaint to the prison officials and in writing in the complaint box. Irrespective of whether she decides to file a formal complaint, she must be given immediate access to specialized psychological support or counselling.

Prisoners may also file complaints under the Sexual Harassment Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Full respect to the privacy of all complainants should be given prime importance, specifically taking into account the risk of retaliation.

Despite these protections, the Hon'ble Supreme Court acknowledged widespread incidence of torture and abuse in prison by both prisoners and authorities most recently in 2015, directing States to install CCTVs in all prisons and encouraging visits by non-official visitors for inspection. Prison administrators should be extremely strict in dealing with the cases of violence against women prisoners. Urgent steps should be taken to ensure access to legal aid and counselling for all women inmates.

Few other effective measures can create quite a change for better if properly implemented. The appointment of a confidential grievance redressal team in the form of the jail staff itself; organization of different workshops inside the jail premises regarding the procedures to file complaints, rights, and encouragement to raise voices for each other.

The appointment of a committee consisting of the inmates themselves to check on violence and intimate grievance redressal team, on the occurrence of some mishappening, will bring the concept of security of the women prisoners by the women prisoners. Strict provisions regarding body searches must be followed.

All staff involved in the custody, interrogation, and treatment of prisoners must be sensitized on gender issues, human rights, and sexual misconduct. Adequate female staff must be appointed to tackle incidents of violence, are among the various recommendations highlighted in multiple reports to pre-emptively strike the violence towards the female prisoner.

We have a plethora of cases and recommendations every year in front of us to be implemented. At the end of the year, we find ourselves failing all those women prisoners who are human first, the fact which is often covered by the blanket of their criminality to justify the violence they face, by the community and the authorities too. There is no justification for aggravating the suffering already inherent in the process of incarceration. It's high time not just to realize what Gandhi Ji said Hate the sin and not the sinner but to add humanize the sinner in furtherance of it.

End-Notes:

1. https://indiankanoon.org/doc/199575/
2. https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled.pdf
3. https://indiankanoon.org/doc/166411414/