For women and children, life in Indian prisons means being subjected to the patriarchy of custodial institutions in unusually cruel ways that have not found much judicial reflection in bail jurisprudence. For bail jurisprudence is foundationally adult, able-bodied and male. It does not empathise with women and children, or the elderly and the afflicted. It does not consider the vicarious liability of the state for the systemic and everyday forms of violence, humiliation and deprivation on women or transgender undertrials. Custodial rape, pregnancy or childbirth is not seen as cruel, inhumane and degrading treatment of women prisoners as women. Nor are the rights of children of incarcerated parents put at the centre of bail jurisprudence. The abject state of women’s prisons, which is much worse than male prisons, is often not seen as a justified ground for the release of women undertrials, even in a pandemic.
In State v. Suman Kumari, Additional Sessions Judge Vishal Gogne made an important departure from malestream bail jurisprudence by privileging the rights of children of incarcerated parents. In this case of dowry murder allegation, the court noticed that the accused sister-in-law of the dead victim was also a mother of a 21-month infant. The mother, who was in prison since December 9, 2020, had applied for regular bail.
Granting bail to the mother on April 2, the court pointed out that the incarceration of mothers amounts to the “de facto detention of their infant/toddler wards”. This was seen as a serious violation of Article 37 of the United Nations Convention on the Rights of the Child, 1989. As also a violation of the JJ Act, 2015 which mandates the best interests of the child as paramount and under Section 3 advocates “institutionalisation of the child as a step of last resort”.
Further, the court points out that the child in “de facto detention” must not suffer worse custodial conditions than children in conflict with the law or children in need of care and protection. Further, the court calls for “empathy” as “the ground for bail” to shine “light upon the often-forgotten victims of incarceration viz the children of imprisoned parents.” The legal gaze on the plight of children of incarcerated parents highlights the injustice of such “detention without cause”.
This was a regular bail hearing — and most of the accused’s incarceration with her young baby was during the time when the prison has been under lockdown and with little, if any gynaecological, paediatric, legal or familial care. This order is very significant today as the mutant COVID-19 ravages prisons.
Despite the 2020 NHRC recommendations to state governments to release women prisoners, especially pregnant women, most states have not recommended the release of pregnant women or mothers with children from prisons. In 2020, the high-powered committee of the Delhi High Court did not release all pregnant women or mothers with infants, despite representations from women’s rights activists and academics. Their criteria for release were based on offence, duration of sentence, nationality etc.
Ignoring, therefore, the Disaster Management Act, 2005 (DMA) which constitutes overcrowded prisons as hotspots of mass contagion, and mandates that mitigation, rescue or relief must be read with Section 61 of the DMA. Section 61 says that the state must provide compensation and relief to the victims of disaster and that “there shall be no discrimination on the ground of sex, caste, community, descent or religion”. The disaster law recognises the differential needs of women and other vulnerable populations in prisons. Surely, the disaster law must be read with prison rules so that all women, children and transgender prisoners are considered the most vulnerable populations, who deserve immediate rescue and relief, mitigation and compensation.
Currently, a public interest litigation has been filed in the Delhi High Court to release prisoners on interim bail following reports that 117 prisoners and 14 jail staff have been infected as on April 17 in Tihar Jail where the number of actual prisoners is more than double the capacity. Fifty-five inmates and four jail staff members have been infected in the Sabarmati Central jail, while 198 prisoners are infected in Maharashtra prisons. Forty-four women prisoners are infected in the Patiala jail, while Gurdaspur Jail reported 200 cases. Pregnant women and children, who cannot be given vaccines, continue to be imprisoned as a virulent virus sweeps through our prisons. We can only hope that our courts will release women and trans-prisoners and provide them with the support to survive once released, in this health emergency.
This pandemic has taught us that by refusing to even give interim bail to women undertrials, including mothers and pregnant women or the elderly and the seriously ill, and victims of prison rape, the criminal legal system is attached to a spectacular form of cruelty. Courts have refused to recognise that our prisons are overpopulated and gendered by design. Unusually cruel gendered, reproductive and sexual punishment is built into the design of our prisons which remain colonial.
We must, therefore, ask ourselves why the decolonisation of the Indian prison system has not yet begun? It is high time that the practice of imprisoning women, children and sexual minorities in prisons, irrespective of offence, nationality or exceptional laws, is abolished altogether as the first step towards decolonising the prison system. And non-custodial measures replace the practice of imprisoning women undertrials. Our courts need to strengthen law’s constitutional quest for humanity, and displace its historical attachment to custodial cruelty, as a basic feature of decolonising Indian law.
This column first appeared in the print edition on April 21, 2021 under the title ‘Wrongful confinement’. The writer is associate professor, Centre for the Study of Law and Governance, JNU
Granting bail to the mother on April 2, the court pointed out that the incarceration of mothers amounts to the “de facto detention of their infant/toddler wards”. 
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