The Three Ps Women Prisoners Battle: Prison, Pandemic and Patriarchy

A prison lockdown is particularly hard for women inmates as they have to deal with the three Ps: prison, pandemic and patriarchy. The abandonment of humane and even paternalistic approaches to women, the elderly and ailing undertrials in male and trans-phobic prisons is extremely worrying and smacks of colonial prisons. Jurists have not named incarcerated pregnancies and custodial childbirths as an unusually inhuman, degrading and cruel punishment of women in prisons. Nor has maternal or infant mortality in custody been called custodial violence. But it is time the sacrifices of incarcerated women were looked into, writes  DR. PRATIKSHA BAXI

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In overworked bail courts, poetry by judges is an interesting response when state impunity becomes immune to judicial reason. That is what  Additional Sessions Judge Amitabh Rawat did when he penned a verse in a bail hearing in the Kafkaesque Delhi riots prosecutions. He concluded it by saying:

"Take your freedom from the cage you are in;
Till the trial is over, the state is reigned in.
The State proclaims; to have the cake and eat it too;

The Court comes calling; before the cake is eaten, bake it too."

Prisons too, like the rest of India, have been under lockdown since March 2020 when Covid-19 struck. A prison lockdown, by definition, means the suspension of the fundamental rights of prisoners. This means not being allowed to make phone calls, meet their families or lawyers, get treatment or clothes, ban on visitors, among other things. One would have imagined that the onus of ensuring the fundamental rights of prisoners would be on the State.

Many petitions challenging the abject conditions in overcrowded prisons have failed. For women inmates, it is a triple lockdown comprising of the three Ps: prison, pandemic and patriarchy.

Denial of Fundamental Rights

During this period, lockdown prisons have not only denied fundamental rights to prisoners, but complaints of ill-treatment have been put on record in different courts. In the last one year, courts have heard many petitions pertaining to the denial of medical treatment, food, legal documents, home-cooked food, sanitation, books, the right to give an exam, access to a laptop to give an online exam,  complaints of harassment, violence, denial of video conferencing and prison visits by families and confiscation of letters.

Indian prisons continue to celebrate the "anda cell" (an unusually cruel punishment reserved for terror suspects and other "high risk" undertrials). Here, prisoners are imprisoned without critical reflection about the nature of judicial toleration to cruel and unusual punishment under the sign of a security State. The blurring of prosecution and persecution in courts is amplified in the cruel treatment meted out in prisons.

Bail jurisprudence evokes the memory of colonial prisons. The abandonment of humane and even paternalistic approaches to women, the elderly and ailing undertrials in male and trans-phobic prisons is extremely worrying. Consider the socio-legal indifference to foreign prisoners even after the death of an undertrial from Uganda in Jail No 6 in Tihar resulting from injuries incurred during a lathi-charge against protesting foreign women prisoners. Ironically, these prisoners were demanding interim bail during the pandemic as a high-powered committee had excluded all foreigners from this consideration, unlike their Indian prison mates.

The legal history and memory of colonial prisons is repressed. The stories of Mahatma Gandhi and Nelson Mandela in colonial prisons in India and South Africa respectively remain forgotten today, and there is hardly any critical judicial reflection on how African women prisoners are treated in Indian prisons. Nor are the patriarchal underpinnings of colonial prisons remembered.

Colonial, Inhuman and Male

Legal writing on punishment often forgets that prisons are foundationally colonial, inhuman and male. To be post-colonial, one has to first understand how to de-colonise law. And in order to understand how to de-colonise law for women, the judiciary would have to recall women's history. And while recalling such histories, it would be necessary to be human, plural and just.

The judiciary is yet to fully acknowledge the manifold contributions made by women to redress the inhuman conditions in prisons as a project of critiquing patriarchy. Patriarchy in our prisons may be measured by how the elderly and the sick are treated.

Deliberate indifference to the health conditions of elderly undertrials, even in a pandemic, amounts to cruel and unusual punishment.

No one would disagree, for example, that it is unusually cruel and inhuman to deny any 83-year-old prisoner suffering from Parkinson's Disease a sipper and a straw. 

One of the most important contributions of women prisoners' writings has been to link the inhumanity of the prison system with patriarchy. The two are inescapably linked. Such inhuman practices were commonplace in colonial prisons. If the judiciary were to read the prison diaries of women prisoners in colonial jails, they would perhaps introspect on why bail jurisprudence needs to be re-written by taking women's critique of custodial institutions seriously.

Writings of Women Freedom Fighters

Women freedom fighters who died in prisons or thereafter due to diseases that colonised their bodies in prison dreamt of the abolition of the colonial prison. Urmila Shastri dreamt of a constitutional swaraj while archiving the abject conditions of women in Meerut prison.  Her account in "My Days in Prison", testifies to the power of women's protest against colonial rule and the use of patriarchal practices of incarceration to suppress dissent.

Urmila Shastri testifies to the protests against the death of a baby of a woman freedom fighter in a colonial prison. The incarceration of pregnant women or mothers was seen as a sign of the despotism of colonial law. Joya Mitra's (2004) Killing Days, published by Kali for Women, notes that it is the mark of a civilised country not to incarcerate pregnant women.

Joya Mitra's prison diary provides a chilling account of a pregnant prisoner with a mental health problem who was shackled in jail. She writes: "So she is lying on the floor, with her shackled leg tied to the bars about a foot above the ground. In this position, the baby can't come out. Much later, the screams turn to groans before stopping altogether… long after, the doctor comes and leaves again. The silent corpse, no longer in shackles, is carried out on a stretcher." The practice of putting fetters on pregnant women before or during childbirth is nothing less than custodial torture. Pregnant women are punished with unusual cruelty. These brutal accounts of colonisation of women's bodies in prisons are not even cited as judicial rhetoric in appellate judgments.

Turning a Blind Eye

Yet today, the arrest of pregnant women is seen as a routine matter of law and order. Jurists have not named incarcerated pregnancies and custodial childbirths as an unusually inhuman, degrading and cruel punishment of women in prisons. Nor has maternal or infant mortality in custody been called custodial violence.

Women freedom fighters wrote about sexual abuse of women prisoners in colonial prisons. They dreamt that once free from colonial rule, no woman would be sexually abused in a prison. Yet, bail courts do not have the same constitutional dreams for women imprisoned in male and inhuman prisons.

Our prisons or courts often do not consider the denial of proper treatment for vaginal infections afflicting women undertrials as inhuman.

Ironically, many women freedom fighters died of diseases contracted in prisons, which were infested with insects, mosquitoes and allergens. This, along with contaminated water and adulterated, inedible food made prisons hell-holes to live in.

These women died for our freedom. Yet, we still have to develop a jurisprudence of bail for women that will acknowledge this sacrifice.

Many women in lockdown prisons do not even have access to bail courts. Their trials, suspended due to the pandemic, means lengthier penal sentences. Women and transpersons are not considered a class deserving protection by high-powered committees set up the Supreme Court. The Delhi High Court refused to consider pregnant women as a class as this was considered to be a prisoner-centric approach.

Give Bail to Pregnant Women

However, the Ministry of Women and Child Development (2018) held that bail should be given to pregnant women to facilitate childbirth outside prison. And the UN General Assembly's adoption of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as Bangkok Rules) vide Rule 24 states that "non-custodial means should be preferred for pregnant women during the pre-trial phase wherever that is possible or appropriate". However, even during the pandemic, pregnant prisoners have not been released from prisons. Why?

Why does the criminal legal system treat undertrials with such cruelty when, in the first place, it exists only because women prisoners died to make the Constitution possible?

Any commitment to gender equality today means naming and condemning the inhumanity of the apparatus of the police, prosecution and prison as foundationally patriarchal, majoritarian and inhuman.

The sacrifice of the women who lost their lives in colonial prisons to win India's freedom demands answers today.

(Pratiksha Baxi is an Associate Professor at the Centre for the Study of Law and Governance, JNU, and has written the book, "Public Secrets of Law: Rape Trials in India" (2014, OUP, Delhi). The views are personal.)