Bandini Jeevan: Understanding the Position of Women Prisoners in India

Rhine P and Sharma A

Published on: 2025-09-06

Abstract

In Tagore’s short story Kabuliwala (1892), Mini, the narrator's daughter and her friend Rahman, the Kabuliwala, often talk about sasural or father-in-law’s house. What becomes interesting is the interpretation behind this word. Conventionally, for a woman, it refers to the house of her husband. Mini, as a child, does not understand this, and the narrator states that, unlike the norm, they had never introduced this word to her. Furthermore, the narrator adds that for people belonging to the trade, like Rahman, sasural often meant prison. As the story progresses, Rahman is convicted of murder and is sent to prison. When Mini sees him handcuffed, she asks him if he is going to his sasural. To maintain the innocence of their friendship, Rahman says yes and jokes about how he could not hit his father-in-law as his hands were tied. The trope of the sasural becomes significant when we try to examine it from the lens of gender. The position of women within the judiciary system views them as victims. But there exists another category- that of the ‘women prisoners’. These ‘criminals’ enter the prison structure (their sasural) and undergo the ramifications of the crime committed.

The Indian Penal Code, introduced in 1860, is applicable to the entire India and every person who is found guilty of committing an offense is punishable under this act. A woman who is found guilty of committing a crime is to be treated as an offender and is imprisoned. But what happens when the same offender becomes a victim within the prison? The oldest women's prison, established in 1870, was in the news in 2017 for the assault of a woman prisoner and raised the question about the safety of women prisoners. The 2024 case in West Bengal highlighted the same. This paper primarily focuses on women prisoners who have been convicted under CrPC. This paper tries to examine the creation of the category of women prisoners within the discourse of colonial law and governance and how it continues in the present period.

Keywords

IPC 1860; CrPC; Prison act 1894; Women prisoners

Introduction

What is jurisprudence? Jurisprudence, also called Dharmashastra, is the philosophy behind how human beings interact with each other and their way of living within a society, in a nation, and in the world. In other words, any act that is considered by the public as dangerous is regarded as a punishable one and is considered as a crime. With changing times, the term "crime" encompasses various acts that are not acceptable by the society, like theft, murder, crimes against the state, etc.

There are three categories of crimes (offenses):

Cognizable and noncognizable: a cognizable offense is one where an arrest could be made without a warrant, while noncognizable ones are the vice versa.
bailable and non-bailable: they differ in their seriousness; for example, an offense against the state is considered to be a non-bailable offense.
Compoundable and non-compoundable: offenses that can be compromised with or without the court's permission are the demarketing factor between the two. Section 320 of the Criminal Procedure Code (CrPC) deals with compoundable offenses [1].

The earliest surviving text, the Rig Veda, refers to crimes like theft, robbery, and stealing [2]. The text makes a reference to thieves (Tayu or Steya) and robbers (Taskara) in several hymns. During the Vedic period, there are no regular institutions. Custom was itself law, and we find reference to theft mainly associated with cattle, although there is no capital punishment. We find reference to trial by ordeal. In the later Vedic period, there are various sources like the Later Vedas, Dharmashastras, etc. We find during this period references to things like theft, robbery, adultery, incest, abduction, killing of embryos, etc. Satapatha Brahmana remarks that the king exercised the power to give punishment, which was called Danda. Defamation, assault, theft, adultery, rape, and all offenses with violence, including murder, are 5 topics out of 18 topics of law that have been mentioned in Manu Smriti and Yajnavalkya Smriti. We also find reference to various crimes that were committed during the medieval period, whether it be during the Sultanate period or the Mughal period. We find references to crimes like adultery, homicide, theft, robbery, etc.

However, when we make careful studies of these texts, we find references to crime being committed by men. We do not find reference to women committing crimes; rather, we find crimes being committed against them. The Indian Penal Code also classifies crimes against women under two broad categories—crimes under the Indian Penal Code (IPC) and crimes under the Special and Local Laws (SLL) [3].Women have always been looked upon as nurturers and caregivers, and the fact that they would commit any form of crime shatters this belief. However, it is not that women have not committed crime. Various theories have been put forth on female criminality, and amongst them the chief ones are

Strain theory, which was first developed in the 1940s by Robert Merton and Albert Cohen to explain the rising crime rate in the USA. As per this theory, crime is caused by pressure or tension. In order to release the tension, individuals would turn towards crime.
Differential Association theory was pioneered by Sutherland and Cressey, and according to them, criminal behavior was learned [4].
Freud’s theory provides a physiological explanation of female criminology: that women criminals suffer from a masculinity complex [5].

The other theories are Hirschi's social control theory, Talcott Parson’s masculinity theory, etc. However, there are various causes of crime by women, one such being economic. Social causes like rising rates of divorce, illegitimacy, female-headed households, etc., are found in the West as reasons for women to commit petty crimes. Many other causes like physiological, illiteracy and low education, psychological, etc.

In the Indian context, two of the earliest cases that were brought before the court were committed by Indian female companions in the homes of Englishmen. Both these cases were brought before the Calcutta Supreme Court under Justice John Hyde in 1777 and 1797, respectively. The first case, Rex vs. Betty and Peggy, was a case where both Betty and Peggy were accused of scalding a slave girl, Susannah, with hot oil and killing her. The other case, Rex vs. William Orby Hunter and Baugwan Khonwar (husband and wife), was where the wife was accused of torturing 3 slave girls who worked in her household [6]. However, it was not until 1870 that the first prison for women was established in India, in Bombay. This prison, located in Byculla, initially housed both men and women inmates, and then in 1876, the Mahila prison was established for female inmates. According to the National Crime Records Bureau’s Prison Statistics India report 2022 [7], there are only 34 women’s jails across India, with Rajasthan having as many as 7 of them. As per the above report and the Prisons Act 1894, the terms "prison" and "jail" have been used interchangeably.And the same report suggests that there is an increase in the women occupancy rates in women's jails to 60.1% at the national level in 2022, from 55.9% in 2017. However, the question of whether there are provisions made for protecting the female inmates in prisons has been answered or not. But before engaging with this, it is important to understand who a prisoner is.

In the 2021 document published by the National Human Rights Commission (India), the definition of a prisoner was taken from the Model Prison Manual (2016). A prisoner is “any person confined in a prison under the order of a competent authority. It means that a prisoner is a person who is kept in jail or prison under custody because he or she has committed any act that is prohibited by the law of the land.” The above definition suggests that due to an illegal act committed by the individual, the person forfeits his rights as a free citizen and has to accept the ruling of the competent authority, resulting in incarceration. The definition considers this category of the prisoner as homogeneous.

This homogenizing of the category of the prisoner needs to be problematized. The process of incarceration resulting in the creation of the category of the woman prisoner needs to be read separately. The objective of this section, then, is to understand why we need to define the category of ‘women prisoners’ separately. Furthermore, it also seeks to understand how the patriarchal structure extends to the prison system and how a woman prisoner is doubly impacted by it.

The two incidents cited in this paper (the Manjula Shetye murder case and the woman inmate in Kolkata) subvert the understanding of the woman prisoner as a criminal and look at her as a victim. Furthermore, these incidents highlight how the category of woman criminal/prisoner should not be taken as transgressive, as the perpetrator becomes the victim.

Before understanding the category of women prisoners, one must first understand the figure of a female criminal. The female criminal stands in opposition to her male counterpart, as the societal and moral responsibility weighs heavier on her. Therefore, she is often depicted as “extraordinary, grotesque, and demonic” [8]. As someone implicated not just in the justice system but also in societal norms, she is considered a deviant, dishonoring the family and community [9]. The lack of honor in this ‘monstrous being’ then must be punished or corrected through the justice system. The fact that she has already transitioned to this ‘being’ and so needs to be punished also entails that she no longer has access to the rights exercised by those ‘outside.’ What becomes even more interesting is that as she succumbs to this image, she becomes doubly invisible.

Under the Indian Penal Code of 1860 [10], women were looked at from the victim's lens in search of justice. This narrative changes when ‘she’ becomes a perpetrator and later an incarcerated perpetrator. Does this transgressive shift and the resultant aftermath (incarceration) erase a woman’s history? Does this shift also indicate an erasure of her ‘past’ identity as a citizen, thereby ‘allocating’ her a new identity of a prisoner?

Women prisoners' experiences of repression and marginality must be seen in the context of their lives. The prison structure as an extension of society adds to the process of invisibilization. As a figure constructed beyond the original intention of ‘correcting’ male prisoners, she continues her marginal position as she enters this system.

The process of change witnessed from victim to perpetrator to victim needs to be traced not only to understand the status of this category but also to examine how the prison structure, as a correctional space, becomes an extension of the societal structure. This raises the question of if the existing prison structure is gendered and furthers the process of marginalization of women. Moreover, one also has to understand that while these ‘prisoners’ may be considered as someone ‘fallen from grace’ and so need correcting, the taboos and restrictions existing outside for women cross and enter the prison space. This ‘crossover’ also undergoes a change as the code of conduct for women prisoners becomes even more stringent. The position of these women also undergoes a change as they enter this space. The surveillance continues as they become bodies that need to be ‘hidden or kept safe. Along with this monitoring, there is also access given to ‘this’ body. In both cases (safety and access), the power resides with the authority.

The prison structure is designed to control and correct its inmates. The participants, willing (jail guards) and unwilling (prisoners), of this structure, perform the assigned role, enabling its ‘total’ function. The assigned role and individual behavior inform the everyday interactions between the participants. As a space and its inmates undergo the routine of surveillance, it is their body that loses its autonomy. “These controls create the normative idea of an ideal prisoner body, ensure ease of governing a population perceived to be socially and criminally deviant, and present an overall image of ordered institutional space” [11]. It is within this assumed order that acts of violence are committed. These acts are projected as tools used to safeguard the system. The normalization of its use becomes a requirement for the everyday functioning of the structure.

How is a female body looked at and disciplined in this space? Within the larger societal context, surveillance of a woman’s body takes place through the patriarchal structure, but what happens when a woman is considered a deviant? The 1905 trial of Kuriyedathu Thathri can be analyzed to understand the patriarchal definition of the deviant woman. The trail that shook the Namboothiri society in Kerala witnessed a Namboothiri woman being accused of adultery. Unlike the conventional process of the accused woman accepting her fate. Thathri demands that her partners should also be judged for the actions committed. The need to control Thathri through the control of her body can be understood through the transition of the Namboothiri woman as she becomes an antharjanam (people inside the house) after marriage. When she takes charge of her body, it poses a threat to societal norms and so needs to be termed as a deviant, thereby giving the control back to the representatives of the community and its officials.

The recent documentary, Curry & Cyanide: The Jolly Joseph Case [12], focuses on the events surrounding the Koodathayi cyanide killings. The role of Jolly Joseph as the central plot shows how she killed six members of her family by poisoning them. The portrayal of the deviant in the case of Jolly becomes even more pronounced as one of her victims is a two-year-old girl. The popular depiction of the woman as a mother and as a nurturer is broken when she murders a child so that she can marry her second husband.

Both the cases mentioned above position the woman as the deviant who needs to be brought to justice. While the crimes may differ, the question one has to ask is if their crimes instantly cease their existence as citizens and, through it, provide access to the extended patriarchal structure of prison. Where does a woman stand in a space and position initially designated for the male? The stricter continuation of the pre-prison experience adds to the process of exclusion where the “woman is denied the sense of self.” As a result, she stands lower than her male counterpart.

The two incidents referred to in this paper bring to the fore two questions: first, what is the role of discipline in a prison system, and second, what are the tools employed to ensure the functioning of this system? Furthermore, both these questions must be examined through the lens of gender. The role of the prison as a space of correction establishes the fact that inmates are sent here to be ‘corrected’ for their deviant behavior and then be reintroduced to society. But how does this process inform the construction of this category of citizen? Moreover, women have always been considered second-rate citizens, so what happens to them when they enter this space? The rules constructed ensure that the inmates leaving this system can become a functioning part of society. This guarantee can work if personal rights and identity are not erased during the term. What ensues through this implementation is a position of complete access and control.

Control over the sexuality of women is used to maintain discipline. This control is considered ‘necessary’ and perceives these women not just as inmates but as “representatives of community, nation, and race” [13]. Their bodies then become the site of exercising this control. The need to control and discipline under the guise of propriety allows the authorities to exercise complete access to the inmates. This becomes more poignant when sexual assault is used as a tool to control or intimidate women inmates.

On June 24, 2017, a riot broke out in the Byculla jail over the alleged killing of an inmate (Manjula Shetye) by the officials. There are three actions we need to consider with regard to this incident: the perpetrators, which include the female prison guards; the inmates who witnessed how the victim was treated; and the enforcement of the male guards to ensure control and discipline. What also needs to be addressed is how this enforcement was made. According to the report cited [14], allegations levied against the female guards for torturing the inmate for stealing eggs focused on sexual abuse, as a witness spoke about seeing Ms. Pokharkar, who heads the women's section of the jail, “use a baton to violate the woman.” Here the figure of Ms. Pokharkar represents the patriarchal forces, as she actively participates in controlling the inmates through sexual assault.

The second incident discussed in the paper is the 2024 amicus curiae [15] report on women prisoners in different prisons in West Bengal getting pregnant while in custody. The report submitted to the Calcutta High Court [16] alleged that there were 196 children born to women prisoners. One of the suggestions provided by the report was to prohibit male employees from these spaces. The report referred to, “The Prison Statistics of India report for 2022, compiled by the National Crime Records Bureau, pointed out that there were 1,537 women prisoners with 1,764 children as of December 31, 2022.” Furthermore, it also highlighted that West Bengal stood in the third position (160 women with 213 children) in terms of women with children’s numbers after Uttar Pradesh and Bihar [17].

Conclusion

The two incidents reported above look at the rights of female prisoners from two perspectives. While the amicus curiae report suggested that an increase in the number of women officers in the prison would help ensure the safety of the women prisoners, the first incident negates this. The role of Ms. Pokharkar in the torture of the inmate asserts the fact that a systemic change needs to be made to safeguard the rights of women prisoners. Even the manner in which the tool of torture (baton) was used can be read as symbolically representing the patriarchal structure to ‘teach women a lesson.’ As Modak [18] points out in her article discussing gender and prison structures, “the prison, with its objective of ‘correction,’ tends to overlook the corrections required in the injustices meted out to women.” After having explored the evidence that has been put forth, the gap existing in the roles of the victim and the perpetrator, especially in the context of women, needs to be acknowledged. To understand this gap, it is necessary to relook at the existing policies that could help bridge this gap.

Global Journal of Arts and Social Sciences

Bandini Jeevan: Understanding the Position of Women Prisoners in India

Abstract

Keywords

Introduction

Conclusion

References