Introduction
India has a small yet significant female inmate population, constituting approximately 4-6% of all the prisoners, and their situation demands urgent attention. The Constitution of India guarantees all fundamental rights to women in custody with the Supreme Court of India ruling out that “prison walls do not keep out fundamental rights” – Articles 14, 19 and 21 “are available to prisoners as well as free men.” (T.V.Vatheeswaran Vs State Of Tamil Nadu on 16 February, 1983, 2018), and accordingly, a woman behind bars has the same right to equality, due process, and personal dignity. In M.H. Hoskot v. State of Maharashtra (1978) that poor persons have a right to counsel; and if the person is unable to engage a lawyer at their instance, then the State shall have to provide one and pay for such engagement to ensure that the person is subjected to a “fair, just, and reasonable” procedure. In short, female inmates are entitled to all constitutional safeguards, including Article 15(3), which expressly considers gender-responsive measures, and Directive Principles (Arts. 39(e), (f), 42, etc.), which speak of humane treatment and special care for women and children in detention.
Legal and Institutional Framework
The Prisons Act, 1894, contains specific provisions relating to women. For instance, Section 27 of the Act says 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…so as to prevent their seeing, or conversing…with the male prisoners”(THE PRISONS ACT, 1894 )
Similarly, Section 24(3) of the act mandates that any search or examination of a female prisoner must be conducted by a female officer- a Matron.Section 46 prohibits brutal punishments for women, exempting them from whipping or fetter use, and requiring women-only wards in state prisons.
The Criminal Procedure Code (CrPC), now BNSS, also protects arrested women. In a landmark amendment to Section 46, it said that women can only be arrested by a female officer, not before sunrise and after sunset, and should not be kept overnight in a male lockup, and any search must be done by a female constable. This practice emphasises having a female constable or a policewoman on duty in every police station, and that a detained woman’s dignity is to be respected at all stages of custody.
The Model Prison Manual 2016 has also devoted an entire Chapter to women prisoners by incorporating international standards (the UN “Bangkok Rules”). It mandates rigorous health screening (for pregnancy, substance abuse, mental health, and STDs), specialized pre- and postnatal care, and a strict prohibition on severe penalties (such as solitary “close confinement” or hard labor for pregnant or nursing inmates.
The Manual adopts Upadhyay v. AP (2006) guidelines for children, mandating additional food, sanitation supplies, and after-care programs. It also mandates women’s prisons to have a creche, nursery, schooling, nutrition, and recreation, and ensures children born in custody are not stigmatized.
Landmark Judgements
There are several key cases that have shaped women’s prison rights. In the landmark case of R.D. Upadhyay v State of A.P., the Supreme Court imposed directions for female convicts and their children. The Court held that a baby born in a prison is not a convict and must receive full care – including food, healthcare, clothing, and education.
It also emphasised proper pre- and postnatal care, and childbirth must occur at the hospital (with the pregnant prisoners being granted leave or parole for delivery), and states were ordered to amend prison manuals within three months for compliance. This case also allowed women prisoners to keep their children (up to six years of age) with them in jail, and the confinement to be made as humane as possible.
M.H. Hoskot v. State of Maharashtra (1978) established that under Article 21, due process includes a right to legal aid for condemned inmates without representation. The Court, led by Krishna Iyer J., ruled that poor prisoners should be assigned competent counsel and have access to appeal transcripts and procedures. Women detainees, often undertrial or destitute offenders, are also entitled to the same legal assistance.
Similarly, inT.V. Vatheeswaran v. Tamil Nadu (1983), the Supreme Court observed that “prison walls do not keep out fundamental rights” – so Articles 14, 19, and 21 “sustain, strengthen and nourish each other…available to prisoners as well as free men”. In the humanitarian spirit of Upadhyay, the Courts routinely grant bail or parole to pregnant women on medical grounds.
In a very recent case of Surbhi v. State of Maharashtra (2024), the Bombay HC granted 6 months’ bail to an advanced pregnant undertrial relying upon the Upadhyay guidelines. The court emphasized that “every person is entitled to dignity” and that “delivering a child in prison may have consequences on the mother as well as the child.” Citing the need for “humane considerations,” the court held that confinement of a new mother with her baby would be unduly traumatic and therefore release on medical-bail grounds was warranted.
Challenges Faced by Female Prisoners
Despite having a legal framework, conditions on the ground remain poor-
- Reproductive and Healthcare issues: Many jails in India lack proper maternal care facilities. As per NHRC report, the expecting mothers are often malnourished and receive insufficient obstetric care. They often face a shortage of sanitary pads, clean water and proper toilets. They do not even have access to basic contraception or abortion services.
- Safety and Dignity issues: Female prisoners are at a constant risk of getting sexually abused by their male counterparts or even guards. While cross-gender searches are officially forbidden, small prisons sometimes flout this rule. Even routine strip-searches sometimes occur without a female officer present. Women held in mixed prisons often have to pass through male quarters to reach their cell-blocks, increasing their exposure to exploitation. (Indeed, reports by human rights activists reveal that in some states, women prisoners are “supplied” to male inmates, resulting in dozens of pregnancies.
- Separation from Children: By law, a baby born in jail may stay with its mother until age six. In reality, few prisons have a proper nursery or creche. IndiaSpend reports that as of 2019 only about 1,543 women (8% of all women prisoners) had a total of 1,779 children living with them behind the bars. When children reach the statutory cut-off for state care or relatives, the resulting separation from their mothers creates trauma, discouraging them from seeking bail. Additionally, imprisoned children typically lack education and recreational opportunities. Although Upadhyay and the Model Prison Manual stipulate that children should have weekly contact with their mothers, this is rarely implemented.
- Rehabilitation and Aftercare: Post-release conditions for women prisoners are challenging, with a scarcity of vocational training and counselling despite legal provisions. The 1983 Mulla Committee’s recommendations for gender-specific education have not been implemented, resulting in women often being assigned to basic tasks instead of receiving certified training. Prisons, which are primarily designed for male inmates, disregard the unique needs of women. As a result, many women endure homelessness, unemployment, and social disgrace upon their release, which may lead to a relapse into poverty or criminal involvement. This problem is made worse in many places by the dysfunction of government “after-care” committees.
Conclusion and Recommendations
Women prisoners in India retain fundamental rights and benefit from special protections under the law and the court. Yet in practice, they face conditions that clash with those protections. Policymakers and administrators must bridge the gap between de jure norms and de facto realities. This means: ensuring every police station and jail complies with CrPC and Prison Act safeguards (e.g. female officers for every woman’s arrest and search); fully adopting the 2016 Model Prison Manual’s women-specific chapter; funding and building dedicated women’s jails or well-equipped annexes; and training staff on gender sensitivity.
Maternal healthcare must be guaranteed – prenatal check-ups, hospital delivery, postpartum follow-up – and babies in prison supplied with nutrition, hygiene and schooling. States should adopt Mulla/Iyer recommendations by fiat: allow cultural garments, set up nurseries, and provide counselling and vocational programs aligned with women’s interests.
Legally, courts and rights bodies must continue to press for compliance. Rising judicial scrutiny (like the recent Bombay HC bail order) and NHRC/NCW interventions are positive signs; they should be supported with data. For instance, all states should report annually on women prisoner numbers, healthcare metrics, education and rehabilitation outcomes (as the NHRC has begun to demand). Internationally, India should report implementation gaps to treaty bodies (e.g. CEDAW) and adopt global best practices.
Ultimately, preserving the dignity and rights of women in custody is a constitutional mandate and a parameter for judging a civilisation
Author Name- Reshmi Chakraborty is a 4th Year B.B.A. LL.B student at Army Law College Pune.
