Credits: Denis Oliveira/Unsplash

By: Manvitha B S

The impregnation of female prisoners by male staff members in India constitutes a severe infringement upon human rights and further exacerbates their vulnerability in an already precarious environment. This blog advocates immediate and decisive measures are imperative to prevent this reprehensible form of custodial abuse and to rebuild trust and integrity in the criminal justice system. The issue is of global concern, necessitating the alignment of every country’s legal system with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), to eradicate sexual abuse within prisons on a global scale.

In India, an alarming petition has been filed in the Calcutta High Court by the amicus curiae advocate, Gaurav Agarwal to address the abhorrent phenomenon of female prisoners being impregnated by male prison officers. The petition highlights a grave miscarriage of justice that leaves incarcerated women doubly victimised by the very system designed to protect them. Further, the petition sheds light on the pervasive abuse and exploitation experienced by female prisoners, both domestically and internationally, constituting a grave violation of Rule 6 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measure for Women Offenders (Bangkok Rules) that stipulates the prevention of sexual abuse and other forms of violence against female prisoners. This petition at the High Court of Calcutta prompted the Supreme Court of India to take immediate action at the national level by exercising suo motu cognisance (where the court takes its own initiative without a petition) to address this pressing issue. The Court observed that female prisoners often endure dire circumstances such as sexual abuse, harassment and exploitation with their confinement exacerbating existing vulnerabilities and, leaving them susceptible to exploitation and neglect. Hence, it is imperative to protect female prisoners from all forms of violence, abuse and exploitation by prison authorities as provided in the Article 2 of the  Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Additionally, it is essential to take stringent measures to prevent custodial abuse and uphold the sanctity of human rights as been underscored in the landmark case, Prem Shankar Shukla v Delhi Administration where the case questioned the dignity and treatment of prisoners by the prison staff and police officials.

Vulnerable condition of female prisoners and their offspring

Female prisoners, inherently vulnerable due to their incarceration, confront escalated risks of sexual abuse within prisons. This phenomenon constitutes an egregious abuse of power by male prison staff, amounting to a heinous form of forced sex and rape. It merely not violates the fundamental rights and dignity of victims but also underscores systemic failures within the law enforcement institutions entrusted with upholding the law. Moreover, economically or socially marginalized women face double exploitation, as they are prime targets for sexual predators. Compounded by limited access to support services and the looming fear of retaliation, these factors heighten the vulnerability of female inmates, disproportionately subjecting them to sexual violence behind bars.

Amidst these egregious circumstances, the innocent offspring are delivered in prison and live with their incarnated mothers with uncertainty and adversity. Deprived of the nurturing embrace of a stable family environment, these children are confronted with formidable challenges from their very inception. Their developmental trajectories are often hindered by the stigmatization accompanying their parentage, compounding the already arduous circumstances of their existence. Tragically, their prospects for a dignified upbringing are further compromised by inadequate provisions within prison systems to address their unique needs. This stark reality underscores an urgent imperative to redress systemic failings and institute comprehensive measures to safeguard the welfare and prospects of these vulnerable children.

Proposed recommendations

The Supreme Court of India considered the proposed recommendations from senior advocate, Gaurav Agarwal aimed to implement several reforms within the prison system. These recommendations urged the Supreme Court to direct the most senior female judicial officer in each district to assess the existing security measures in women's detention facilities. It was also suggested to evaluate the adequacy of female personnel responsible for ensuring the security and welfare of women inmates and to conduct regular health screenings upon admission and at regular intervals. The female detention facilities should be predominantly staffed by women, with male personnel only stationed at the perimeter and gates. Men should not be permitted to enter these women's facilities unless necessary, such as for medical consultations with male doctors or with female guards accompanying them. There is a pressing need for statutory legislation to safeguard female prisoners from sexual abuse, akin to the Prison Rape Elimination Act in the USA and the Prison Act in Germany. Such legislation would establish clear guidelines and standards for preventing, detecting, and responding to incidents of sexual abuse within prisons. Additionally. it is imperative to ensure access to quality education, healthcare and appropriate facilities for vulnerable children living with their incarcerated mothers.

This is essential, as provided in the Convention on the Rights of the Child to foster their holistic development, as observed in the remarkable case, of Unnikrishnan CV and Others v Union of India which addressed the essential facilities like education, and healthcare of children crucial for their personal development. 

Conclusion

Implementing robust measures to safeguard female prisoners from the risk of being impregnated by male prison officers is imperative to uphold their dignity and rights and ensure justice within the prison system. As enshrined in the Universal Declaration of Human Rights, every individual has inherent rights that must be respected and protected, regardless of their circumstances. Adopting stringent protocols to prevent and address such misconduct is paramount, encompassing rigorous screening procedures for personnel, enhanced supervision mechanisms, and swift disciplinary actions against perpetrators. These measures should align with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which set forth principles for the humane treatment of all prisoners and emphasize the necessity of protecting prisoners from any form of harassment or abuse. Furthermore, investing in comprehensive support services, including access to reproductive healthcare and counselling, is vital to empower female prisoners to assert their autonomy and well-being. By fortifying institutional safeguards and fostering a culture of zero tolerance for abuse, we can engender a safer and more equitable environment conducive to the rehabilitation and reintegration of female inmates into society.

Bio:

Manvitha B S is pursuing her BA LLB Hons at Rajiv Gandhi National University of Law. She is interested in Human Rights, Criminal Law and International Law. She is a member of the Law Development and Research Network and aspires to bring about positive change in the realm of human rights to create a more equitable and inclusive society.