Carceral Patriarchy: An Understanding of Female Prisoners in India and Their Human Rights
Posted on : May 26, 2025Author : Debangi Sanyal
Introduction
India’s criminal justice system, like much of its social structure, is embedded within layers of patriarchy, caste, and economic inequality. Women, historically positioned as moral anchors and nurturers, are culturally disassociated from criminality. However, their increasing visibility within the penal system contests this perception and exposes the gendered nature of crime and punishment. Between 2001 and 2021, the number of women prisoners in India rose by nearly 61%, many of whom are incarcerated for crimes stemming from structural inequalities, domestic violence, or survival strategies rather than organized or violent criminal behaviour.
Gendered Pathways to Incarceration: A Structural Perspective
Female incarceration in India predominantly reflects the lived realities of structurally disadvantaged women. According to Bhosle (2009), the majority of incarcerated women belong to Scheduled Castes, Scheduled Tribes, or religious minorities. A 2021 report by the National Crime Records Bureau confirms that Dalit and Adivasi women are overrepresented in prison populations, often criminalized for poverty-induced or retaliatory acts. In many cases, women face arrest for defending themselves or their children against abuse.
A pertinent example is that of Kausalya, a young woman from Tamil Nadu whose husband Shankar, a Dalit man, was murdered in an honour killing orchestrated by her family in 2016. Though she was the victim of familial violence, the criminal justice system initially treated her with suspicion, showing how caste and gender biases compound injustice (Indian Express, 2017). Another example is Neelam, a tribal woman from Jharkhand, who spent seven years as an undertrial after being falsely accused of being a Maoist sympathizer. Her case was eventually dismissed due to lack of evidence, but only after she lost crucial years of her life in prison (The Hindu, 2020).
Internationally, similar patterns have been observed. In the United States, the case of Cyntoia Brown, who was sentenced to life imprisonment at 16 for killing a man who bought her for sex, highlights how criminal justice systems across the globe often penalize victims of abuse rather than protecting them (Leong, 2020). Brown’s case drew global attention to the criminalization of survivors of sexual violence, leading to a clemency campaign and eventual release.
Intersectional feminist theories, particularly Kimberlé Crenshaw’s model of overlapping oppressions, explain how gender, caste, class, and ethnicity intersect in shaping pathways into incarceration. In India, these vulnerabilities are intensified by procedural failures. The Prison Statistics India 2021 data shows that 77.1% of female inmates are undertrial, many imprisoned longer than the maximum sentence prescribed for their alleged crimes due to sluggish judicial procedures, lack of legal representation, and inability to afford bail. This scenario is compounded by poor legal literacy among women inmates, many of whom are unaware of their right to bail under Section 437 CrPC or to free legal aid.
As a result, prisons become holding cells for women caught in cycles of poverty and violence rather than spaces for justice or rehabilitation. The systemic failure to distinguish between survival crimes and high-risk offenses leads to a homogenization of punishment, where women involved in acts of self-defense or petty theft receive the same treatment as habitual offenders. Such gender-blind and caste-insensitive approaches necessitate urgent reform.
Human Rights in Indian Prisons: The Gender Gap
Despite constitutional guarantees under Articles 14 (equality before the law), 19 (freedom of expression), and 21 (protection of life and personal liberty), and India’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the realities of prison life for women remain starkly inadequate. The 2021 NCRB report states that only 31 out of 1,319 jails in India are designated women-exclusive facilities, housing a mere 4.3% of the total female prison population. The majority of female prisoners are placed in male-centric institutions, where they face overcrowding, lack of sanitation, poor menstrual hygiene management, and absence of qualified female medical professionals.
Such conditions are in clear violation of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders—popularly known as the Bangkok Rules (2010), which emphasize gender-specific treatment and highlight the need for physical and psychological health support for female inmates. Rule 5 of the Bangkok Rules specifically mandates that “women prisoners shall be allocated, to the maximum extent possible, to prisons close to their homes or their places of social rehabilitation.”
India’s legal and policy framework, however, still lags in gender-specific institutional care. While the Model Prison Manual (2016) incorporates gender-sensitive measures such as provision for crèches, vocational training, and periodic gynaecological check-ups, its implementation remains patchy and dependent on state-level discretion. Additionally, the Mulla Committee Report (1983) and the more recent Justice Amitava Roy Committee Report (2018) recommended comprehensive reforms in prison infrastructure and rehabilitation, particularly for female and undertrial prisoners. Yet, custodial torture, neglect, and procedural delays continue.
Sexual violence in custody remains a critical and underreported issue. The 2010 Asian Centre for Human Rights report documented 39 custodial rapes between 2006 and 2010, though experts argue that the actual number is likely far higher due to stigma, fear, and lack of institutional mechanisms for reporting. A prominent case was that of Maloti Kalandi, a trafficking survivor from Assam who was handed over to police for protection but was instead raped by sub-inspector Sahidur Rahman in custody. The case underscores the culture of impunity that exists in custodial environments. A pivotal moment in India’s legal history concerning custodial violence and sexual assault was the 1972 Mathura rape case. Mathura, a 16-year-old Adivasi girl, was allegedly raped by two policemen inside a Maharashtra police station. The Supreme Court, in Tukaram v. State of Maharashtra (1979), acquitted the accused, reasoning that there was no physical resistance and hence, no proof of non-consensual intercourse. This verdict sparked nationwide protests led by feminist groups, who argued that the court’s interpretation ignored the power imbalance and custodial coercion inherent in the case.
The public outcry led to a landmark shift: the Criminal Law (Amendment) Act of 1983. This amendment introduced Section 114A of the Indian Evidence Act, placing the burden of proof on the accused in custodial rape cases once the victim testifies to non-consent. It also inserted Sections 376B to 376D into the Indian Penal Code, expanding the definition of custodial rape and mandating stricter punishments for public servants guilty of sexual assault while abusing their authority. The Mathura case thus became a turning point, laying the foundation for feminist legal reforms around sexual violence and custodial abuse in India.
Such incidents reinforce Michel Foucault’s conception of carceral power as a mechanism that disciplines through physical control of bodies. Feminist scholars have built upon this analysis. Susan Bordo (1993), for example, introduced the concept of “body politics” to describe how institutional surveillance disproportionately polices the female body, reinforcing gendered norms through practices of humiliation and control.
In response to rising reports of custodial violence, the Prevention of Torture Bill (2010) was introduced in India to bring domestic law in alignment with the UN Convention Against Torture, but it has yet to be enacted into law, leaving a major gap in legal redress. The Nirbhaya Act (Criminal Law (Amendment) Act, 2013) introduced stricter punishments for custodial rape, but application remains limited due to lack of independent oversight in prison systems.
Internationally, several countries have enacted effective frameworks to curb custodial abuse and ensure gender-sensitive incarceration. Norway, for example, has adopted a dignity-oriented model, where female inmates have access to individualized healthcare and rehabilitative programming in small, community-based prisons. In Canada, the Arbour Report (1996) led to sweeping changes in the management of female correctional facilities after it exposed systemic abuses, including strip searches and solitary confinement, against women at the Prison for Women in Kingston. These changes included independent review bodies and trauma-informed care protocols.
India can draw lessons from these global practices by institutionalizing independent grievance redressal mechanisms, ensuring the presence of female officers in every female inmate’s medical or disciplinary process, and fully implementing the gender-specific protocols outlined in both domestic policy and international commitments.
Motherhood in Captivity and Legal Apathy: The Carceral Burden on Mothers and Children
The treatment of incarcerated mothers and their children represents one of the most acute human rights failures within the Indian penal system. The Model Prison Manual (2016) allows women prisoners to keep children with them until the age of six, but the reality within prisons is far from ideal. Most facilities lack basic child-friendly infrastructure such as nurseries, playgrounds, pediatric care, or trained childcare staff. This absence is not only a logistical failure but also a moral one, as it turns punitive environments into the only spaces available for formative childhood development.
Children growing up in such spaces internalize surveillance, discipline, and fear as part of their reality. In The Wire (2021), a mother recounted how her young daughter assumed cavity searches were a routine part of moving between spaces. These stories reflect the institutionalization of violence and the normalization of trauma. Article 28 of the UN Convention on the Rights of the Child guarantees the right to education, and Article 31 guarantees the right to play—rights that are functionally denied in Indian prisons. The National Commission for Protection of Child Rights (NCPCR) also notes the absence of structured educational programs or psychological support in most Indian prisons housing children.
These violations are not merely anecdotal. In 2019, the Supreme Court of India, in Re: Inhuman Conditions in 1382 Prisons, directed state governments to ensure proper facilities for pregnant women and mothers with children. Yet a 2022 audit by CHRI (Commonwealth Human Rights Initiative) found that compliance remained inconsistent across states, with many prisons lacking even the most basic child-rearing infrastructure.
Media representations such as the documentary Born Behind Bars (2018) highlight the daily realities of incarcerated children, portraying toddlers playing on cracked cement floors under constant surveillance. These depictions underscore how incarceration affects not just adult inmates but entire intergenerational lifelines.
Overlaying this crisis is a deeper structural silence around the legal pathways that keep women imprisoned. India’s legal architecture allows for gendered compassion. Section 437 of the Code of Criminal Procedure (CrPC) permits bail for women—even in non-bailable offences—especially if they are pregnant or have dependent children. However, this legal safeguard is underutilized due to poor legal literacy among prisoners and systemic judicial apathy.
The Justice Amitava Roy Committee Report (2018) recommended that every woman prisoner be paired with a legal volunteer, yet this measure remains aspirational and unmonitored. Moreover, many women are incarcerated for petty or retaliatory offences and are first-time offenders. According to Prison Statistics India 2021, over 70% of women prisoners were undertrials, not convicted criminals. Their incarceration often reflects social failure rather than legal necessity.
Feminist criminologist Pat Carlen emphasizes that women are punished not just for breaking the law, but for transgressing societal norms of femininity. A woman who escapes domestic abuse and retaliates is doubly punished—once by the law and again by a society that expects her to be submissive and nurturing. This systemic double-bind means that motherhood, which is socially idealized outside prison walls, becomes a site of both surveillance and deprivation within them.
Internationally, some nations have moved towards more humane approaches. In Germany, for instance, children up to the age of six can stay with their mothers in special ‘mother-child houses’ equipped with schools and paediatric care, supervised by trained psychologists and educators. In the UK, Mother and Baby Units (MBUs) operate within select prisons, offering nursery staff and structured routines for early childhood development. These models illustrate how incarceration can be restructured to account for gender and developmental rights, rather than erase them.
Comparative Models and Policy Recommendations: Global Lessons for India
Several countries have made significant strides in ensuring that the incarceration of women—particularly mothers—does not come at the cost of their children’s development or human dignity. South Africa has pioneered the establishment of mother-child units in correctional facilities, ensuring not just physical co-residence but also access to early childhood education, nutrition, and psychological support services. Brazil limits the period children can stay with incarcerated mothers to six years and mandates regular psychological assessments for both mother and child, recognizing the profound impact imprisonment can have on early development. Scandinavian nations such as Norway have adopted an open prison model that emphasizes rehabilitation over punishment. These prisons often allow children to live semi-independently, attend regular schools outside the facility, and maintain stable routines under supervised but minimally restrictive conditions. The guiding principle in such systems is that incarceration should not perpetuate intergenerational trauma or restrict basic developmental rights.
Drawing from these international best practices, India must reconfigure its penal policies to align with restorative justice principles. First, it is imperative to establish specialized mother-child prison units equipped with nurseries, pediatric healthcare, and age-appropriate education and play facilities. Gender-sensitization training for prison staff should be mandatory, aimed at eliminating patriarchal biases that influence the treatment of female prisoners. Additionally, regular mental health assessments and trauma-informed care protocols must be institutionalized. Bail rights under Section 437 of the CrPC must be proactively enforced, particularly for pregnant women and mothers of young children, while state-funded legal literacy programs can empower inmates with awareness of their rights. Early education programs for children in custody should be standardized, and accountability mechanisms must be introduced to address instances of custodial violence and neglect. Together, these measures can lay the groundwork for a prison system that upholds, rather than undermines, the constitutional and human rights of incarcerated women and their children.
Conclusion: Toward a Gender-Just Penal Reform in India
The incarceration of women in India is not simply a matter of criminal justice but a window into broader societal failures. It reflects how patriarchy, caste-based marginalization, and socio-economic exclusion are reproduced within the carceral system. Rather than serving as institutions of rehabilitation, Indian prisons for women too often become sites of further trauma—especially for mothers, victims of violence, and undertrial prisoners trapped by procedural delays. The absence of gender-sensitive infrastructure, inadequate access to legal recourse, and the normalization of custodial violence constitute not merely policy oversights but violations of constitutional and human rights obligations.
The paper argues for an urgent reconceptualization of incarceration through the lens of restorative and intersectional justice. This includes full implementation of the Model Prison Manual (2016), operationalization of rights under CrPC Section 437, adherence to the Bangkok Rules, and integration of international best practices tailored to the Indian context. India must view women not as passive recipients of carceral discipline but as individuals whose agency has been eroded by structural violence. A gender-transformative approach—grounded in care, rehabilitation, and rights-based governance—must guide prison reforms. Only then can the penal system move from punitive exclusion toward inclusive justice, reaffirming the constitutional promise of equality and dignity for all.
Debangi Sanyal,
Intern, Asia in Global Affairs
Disclaimer: The views expressed in this article are solely those of the author and do not reflect the views of Asia in Global Affairs or any other affiliated institution or organization.
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