Susannah Alexander

Lack of inclusivity in legal provisions for pregnant prisoners in India: It’s link to recidivism The measurement of rehabilitative success for a prison population is done through their ability to reintegrate with the external community. The dynamics of reintegration occurs within the prison environment, directed by legal guidelines and enforcements that should ideally modulate administrative functions. This pertains to even the incarcerated females, specifically women who are pregnant. To examine the legal provisions of pregnant women with the highest possible inclusivity and generalizability, a national review has been conducted, encompassing multiple policies across a vast timeline. A study conducted by Kelsey et al (2017) reported that only 37.7% correctional homes test pregnant women in the US, Delap (2016) posits a causal relationship between female prison vulnerabilities and unwarranted pregnancies resulting in the birth of approximately 100 children every year in the prisons of United Kingdom. The above statistics parallelly coexist with the United Nations handbook guidelines that clearly charts the need for a legal intervention to “reduce the number of pregnant women in prisons to a minimum.” Surprisingly, after a thorough review of the NCRB prison statistics (2016-17) there has been no official statistical documentation or record of the number of pregnant inmates in Indian prisons. Prevalent Indian Prison Policies: The following policies were critically analyzed to assess the necessary legal suggestions listed further in the article: 1) 2) 3) 4) 5) 6) National Policy on prison reforms and correctional facility The Indian Penal code (1860) Prisoner’s act (1900) Probation of offender’s act (1958) Code of criminal procedure (1973) Model prison manual (2016) In R.D Upadhyay vs state of AP and ors, mandatory guidelines for the welfare of pregnant inmates were reiterated as a facilitation of developmental progress. The consolidated guidelines have been used as a framework for the laws already existing for the pregnant prison population and is listed below: 1) Provision of basic prenatal and postnatal facilities 2) Immediate action for the medical examination of pregnant prisoners at the District Government Hospital 3) Temporary release and provision of independent facility for the woman prior to delivery The above pointers are not the entirety of the guidelines mentioned in the document for pregnant population. They have been selectively highlighted to use as relevant reference for the analysis and suggested legal additions listed below. Problems with the existing framework: Addressal of the lack of inclusivity Although the supreme court described the existing policies as “specific”, the absence of the following significant legal provisions and actions have clarified its lack of inclusivity: 1) The duration of temporary discharge from the prison environment for medical purposes is determined by the lady medical officer. This singular interpretation showcases a lack of decisive independence for the concerned pregnant prisoner and marginalizes her autonomy. The guidelines should specify the involvement of the woman in determining duration of discharge. 2) While independent facilities for pregnant women have been included, the indication of the provision for an extended period of time sufficient enough to prevent the spread of communicable illnesses have not. The existing policies should include specific extended durations that are subject to individualistic variations. 3) There has been no indication to the level of accessibility to pregnancy tests and reproductive counselling granted to pregnant inmates 4) Elaborate and distinct policies concerned with the potential early release of pregnant women after a thorough assessment of the circumstances should be formulated (NCPCR) 5) All of the above policy manuals have classified women (including pregnancy provisions) and children under the same category. This structure grants shared and a lack of exclusive visibility for the women (as well as pregnant) prisoners. 6) The Model Prison Manual (2016) was developed to holistically accelerate prison reforms and bring uniformity to prison laws across governing state bodies. The model includes laws concerning the following significant issues: (i) Screening pregnant prisoners for STD’s (ii) Conducting drug and mental health screenings and ensuring subsequent care (iii) Formulating and adhering to laws that strengthen access to legal counselling and knowledge for pregnant prisoners. The NHRC emphasizes on the importance of providing legal aid, especially for marginalized prison communities and the indiscriminate distribution of qualified lawyers for the same. 7) The loophole in the application of the manual to state bodies is that these are fundamental guidelines state bodies are “expected” to adhere to. Their independent prison guidelines supersede the above framework which is only suggested to be merged within it. Due to the lack of mandatory enforcement of the above manual, states are yet to incorporate the guidelines into their systems (TheWire, 2016). While the Model prison Manual can be criticized for its inhumane and unreasonable amendments to the existing laws(TheWire,2016), the specific legal inclusions concerning pregnant women can be selectively made mandatory to all the state governments. Analyzing the role of the existing legal framework in determining Recidivism: Desistance is the procedure that leads to the complete cessation of an offender’s engagement with criminal conduct. The unodc handbook provides legal amendments that are imperative for social reintegration and prevention of recidivism. Core categories of the mentioned amendments were prison and probation laws which included “administration of prisons that determine programs of intervention” and “conditions attached to a probation order” respectively. This indicates the influential role played by existing prison laws concerning the management of pregnant women in prison environments in determining the probability of recidivism. The handbook clearly highlights the need to address existing gaps in prison laws that indirectly yet heavily impact the threat posed to the community at large. Links used for reference: 1) https://ncrb.gov.in/sites/default/files/PSI-2016_0.pdf 2) https://www.ijrar.org/papers/IJRAR1AXP008.pdf 3) http://www.wbja.nic.in/wbja_adm/files/Guidelines%20to%20be%20followed%20 in%20case%20the%20children%20of%20women%20prisoner%20living%20in% 20prison..pdf 4) https://www.unodc.org/documents/justice-and-prison-reform/women-andimprisonment.pdf 5) https://unlawkindia.com/articles-based-on-criminal-law/probation-law-in-indiaand-its-challenges 6) https://thewire.in/politics/new-draft-model-prison-manual-implicitly-explainswhy-prison-riots-happen 7) https://vikaspedia.in/social-welfare/women-and-child-development/womendevelopment-1/women-in-prisons 8) https://legislative.gov.in/sites/default/files/A1958-20.pdf 9) https://legislative.gov.in/sites/default/files/A1974-02.pdf 10) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 11) https://bprd.nic.in/WriteReadData/userfiles/file/--Part%20I.pdf 12) https://bprd.nic.in/WriteReadData/userfiles/file/-Model%20Prison%20Manual.pdf 13) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 14) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC-/#CIT1 The measurement of rehabilitative success for a prison population is done through their ability to reintegrate with the external community. The dynamics of reintegration occurs within the prison environment, directed by legal guidelines and enforcements that should ideally modulate administrative functions. This pertains to even the incarcerated females, specifically women who are pregnant. To examine the legal provisions of pregnant women with the highest possible inclusivity and generalizability, a national review has been conducted, encompassing multiple policies across a vast timeline. A study conducted by Kelsey et al (2017) reported that only 37.7% correctional homes test pregnant women in the US, Delap (2016) posits a causal relationship between female prison vulnerabilities and unwarranted pregnancies resulting in the birth of approximately 100 children every year in the prisons of United Kingdom. The above statistics parallelly coexist with the United Nations handbook guidelines that clearly charts the need for a legal intervention to “reduce the number of pregnant women in prisons to a minimum.” Surprisingly, after a thorough review of the NCRB prison statistics (2016-17) there has been no official statistical documentation or record of the number of pregnant inmates in Indian prisons. Prevalent Indian Prison Policies: The following policies were critically analyzed to assess the necessary legal suggestions listed further in the article: 1) National Policy on prison reforms and correctional facility 2) The Indian Penal code (1860) 3) Prisoner’s act (1900) 4) Probation of offender’s act (1958) 5) Code of criminal procedure (1973) 6) Model prison manual (2016) In R.D Upadhyay vs state of AP and ors, mandatory guidelines for the welfare of pregnant inmates were reiterated as a facilitation of developmental progress. The consolidated guidelines have been used as a framework for the laws already existing for the pregnant prison population and is listed below: 1) Provision of basic prenatal and postnatal facilities 2) Immediate action for the medical examination of pregnant prisoners at the District Government Hospital 3) Temporary release and provision of independent facility for the woman prior to delivery The above pointers are not the entirety of the guidelines mentioned in the document for the pregnant population. They have been selectively highlighted for use as relevant references for the analysis and suggested legal additions listed below. Problems with the existing framework: Addressal of lack of inclusivity; Although the supreme court described the existing policies as “specific”, the absence of the following significant legal provisions and actions have clarified its lack of inclusivity: 1) The duration of temporary discharge from the prison environment for medical purposes is determined by the lady medical officer. This singular interpretation showcases a lack of decisive independence for the concerned pregnant prisoner and marginalizes her autonomy. The guidelines should specify the involvement of the woman in determining the duration of discharge. 2) While independent facilities for pregnant women have been included, the indication of a provision for an extended period of time sufficient enough to prevent the spread of communicable illnesses has not. The existing policies should include specific extended durations that are subject to individualistic variations. 3) There has been no indication of the level of accessibility to pregnancy tests or reproductive counselling granted to pregnant inmates. 4) Elaborate and distinct policies concerning the potential early release of pregnant women after a thorough assessment of the circumstances should be formulated (NCPCR) 5) All of the above policy manuals have classified women (including pregnancy provisions) and children under the same category. The structure grants shared and lacks exclusive visibility for women (as well as pregnant) prisoners. 6) The Model Prison Manual (2016) was developed to holistically accelerate prison reforms and bring uniformity to prison laws across governing state bodies. The model includes laws concerning the following significant issues: (i) Screening pregnant prisoners for STD’s (ii) Conducting drug and mental health screenings and ensuring subsequent care (iii) Formulating and adhering to laws that strengthen access to legal counselling and knowledge for pregnant prisoners. The NHRC emphasizes the importance of providing legal aid, especially for marginalized prison communities and the indiscriminate distribution of qualified lawyers for the same. 7) The loophole in the application of the manual to state bodies is that these are fundamental guidelines that state bodies are “expected” to adhere to. Their independent prison guidelines supersede the above framework, which only suggests being merged from within it. Due to the lack of mandatory enforcement of the above manual, states are yet to incorporate the guidelines into their systems (TheWire, 2016). While the Model prison Manual can be criticized for its inhumane and unreasonable amendments to the existing laws(TheWire,2016), the specific legal inclusions concerning pregnant women can be selectively made mandatory to all state governments. Analyzing the role of the existing legal framework in determining recidivism: Desistance is the cessation of an offender’s engagement with criminal conduct. The Unodc handbook provides legal amendments that are imperative for social reintegration and prevention of recidivism. The core categories of the mentioned amendments were prison and probation laws, which included “administration of prisons that determine programs of intervention” and “conditions attached to a probation order” respectively. This indicates the influential role played by existing prison laws concerning the management of pregnant women in prison environments in determining the probability of recidivism. The handbook clearly highlights the need to address existing gaps in prison laws that indirectly yet heavily impact the threat posed to the community at large. Links used for reference: 1) https://ncrb.gov.in/sites/default/files/PSI-2016_0.pdf 2) https://www.ijrar.org/papers/IJRAR1AXP008.pdf 3) http://www.wbja.nic.in/wbja_adm/files/Guidelines%20to%20be%20followed%20in% 20case%20the%20children%20of%20women%20prisoner%20living%20in%20prison..pdf 4) https://www.unodc.org/documents/justice-and-prison-reform/women-andimprisonment.pdf 5) https://unlawkindia.com/articles-based-on-criminal-law/probation-law-in-india-andits-challenges 6) https://thewire.in/politics/new-draft-model-prison-manual-implicitly-explains-whyprison-riots-happen 7) https://vikaspedia.in/social-welfare/women-and-child-development/womendevelopment-1/women-in-prisons 8) https://legislative.gov.in/sites/default/files/A1958-20.pdf 9) https://legislative.gov.in/sites/default/files/A1974-02.pdf 10) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 11) https://bprd.nic.in/WriteReadData/userfiles/file/--Part%20I.pdf 12) https://bprd.nic.in/WriteReadData/userfiles/file/-Model%20Prison%20Manual.pdf 13) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 14) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC-/#CIT1 1) Harley Davidson market outlook blog: https://docs.google.com/document/d/1SCI5_RP4SLmoSrvTvQXG0CHr3zX2COP/edit?usp=sharing&ouid=-&rtpof=true&sd=true 2) Research paper sample: https://docs.google.com/document/d/1ejzMIbylfEuO0leQhC4ve5gFR8R5dm2Cd1p6KZIy71 Y/edit?usp=sharing 3) Article written to improve current prison conditions in India: Lack of inclusivity in legal provisions for pregnant prisoners in India: It’s link to recidivism The measurement of rehabilitative success for a prison population is done through their ability to reintegrate with the external community. The dynamics of reintegration occur within the prison environment, directed by legal guidelines and enforcements that should ideally modulate administrative functions. This pertains to incarcerated females, specifically women who are pregnant. To examine the legal provisions of pregnant women with the highest possible inclusivity and generalizability, a national review has been conducted, encompassing multiple policies across a vast timeline. A study conducted by Kelsey et al (2017) reported that only 37.7% correctional homes test pregnant women in the US, Delap (2016) posits a causal relationship between female prison vulnerabilities and unwarranted pregnancies resulting in the birth of approximately 100 children every year in the prisons of United Kingdom. The above statistics parallelly coexist with the United Nations handbook guidelines that clearly charts the need for a legal intervention to “reduce the number of pregnant women in prisons to a minimum.” Surprisingly, after a thorough review of the NCRB prison statistics (2016-17) there has been no official statistical documentation or record of the number of pregnant inmates in Indian prisons. Prevalent Indian Prison Policies: The following policies were critically analyzed to assess the necessary legal suggestions listed further in the article: 1) National Policy on prison reforms and correctional facility 2) The Indian Penal code (1860) 3) Prisoner’s act (1900) 4) Probation of offender’s act (1958) 5) Code of criminal procedure (1973) 6) Model prison manual (2016) In R.D Upadhyay vs state of AP and ors, mandatory guidelines for the welfare of pregnant inmates were reiterated as a facilitation of developmental progress. The consolidated guidelines have been used as a framework for laws already existing for the pregnant prison population and are listed below: 1) Provision of basic prenatal and postnatal facilities 2) Immediate action for the medical examination of pregnant prisoners at the District Government Hospital 3) Temporary release and provision of independent facility for the woman prior to delivery The above pointers are not the entirety of the guidelines mentioned in the document for the pregnant population. They have been selectively highlighted for use as relevant references for the analysis and suggested legal additions listed below. Problems with the existing framework: Addressing the lack of inclusivity; Although the supreme court described the existing policies as “specific”, the absence of the following significant legal provisions and actions have clarified its lack of inclusivity: 1) The duration of temporary discharge from the prison environment for medical purposes is determined by the lady medical officer. This singular interpretation showcases a lack of decisive independence for the concerned pregnant prisoner and marginalizes her autonomy. The guidelines should specify the involvement of the woman in determining the duration of discharge. 2) While independent facilities for pregnant women have been included, the indication of a provision for an extended period of time sufficient enough to prevent the spread of communicable illnesses has not. The existing policies should include specific extended durations that are subject to individualistic variations. 3) There has been no indication of the level of accessibility to pregnancy tests or reproductive counselling granted to pregnant inmates. 4) Elaborate and distinct policies concerning the potential early release of pregnant women after a thorough assessment of the circumstances should be formulated (NCPCR) 5) All of the above policy manuals have classified women (including pregnancy provisions) and children under the same category. The structure grants shared and lacks exclusive visibility for women (as well as pregnant) prisoners. 6) The Model Prison Manual (2016) was developed to holistically accelerate prison reforms and bring uniformity to prison laws across governing state bodies. The model includes laws concerning the following significant issues: (i) Screening pregnant prisoners for STD’s (ii) Conducting drug and mental health screenings and ensuring subsequent care (iii) Formulating and adhering to laws that strengthen access to legal counselling and knowledge for pregnant prisoners. The NHRC emphasizes the importance of providing legal aid, especially for marginalized prison communities and the indiscriminate distribution of qualified lawyers for the same. 7) The loophole in the application of the manual to state bodies is that these are fundamental guidelines that state bodies are “expected” to adhere to. Their independent prison guidelines supersede the above framework, which only suggests being merged from within it. Due to the lack of mandatory enforcement of the above manual, states are yet to incorporate the guidelines into their systems (TheWire, 2016). While the Model prison Manual can be criticized for its inhumane and unreasonable amendments to the existing laws(TheWire,2016), the specific legal inclusions concerning pregnant women can be selectively made mandatory to all state governments. Analyzing the role of the existing legal framework in determining recidivism: Desistance is the cessation of an offender’s engagement with criminal conduct. The Unodc handbook provides legal amendments that are imperative for social reintegration and prevention of recidivism. The core categories of the mentioned amendments were prison and probation laws, which included “administration of prisons that determine programs of intervention” and “conditions attached to a probation order” respectively. This indicates the influential role played by existing prison laws concerning the management of pregnant women in prison environments in determining the probability of recidivism. The handbook clearly highlights the need to address existing gaps in prison laws that indirectly yet heavily impact the threat posed to the community at large. Links used for reference: 1) https://ncrb.gov.in/sites/default/files/PSI-2016_0.pdf 2) https://www.ijrar.org/papers/IJRAR1AXP008.pdf 3) http://www.wbja.nic.in/wbja_adm/files/Guidelines%20to%20be%20followed%20in% 20case%20the%20children%20of%20women%20prisoner%20living%20in%20prison..pdf 4) https://www.unodc.org/documents/justice-and-prison-reform/women-andimprisonment.pdf 5) https://unlawkindia.com/articles-based-on-criminal-law/probation-law-in-india-andits-challenges 6) https://thewire.in/politics/new-draft-model-prison-manual-implicitly-explains-whyprison-riots-happen 7) https://vikaspedia.in/social-welfare/women-and-child-development/womendevelopment-1/women-in-prisons 8) https://legislative.gov.in/sites/default/files/A1958-20.pdf 9) https://legislative.gov.in/sites/default/files/A1974-02.pdf 10) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 11) https://bprd.nic.in/WriteReadData/userfiles/file/--Part%20I.pdf 12) https://bprd.nic.in/WriteReadData/userfiles/file/-Model%20Prison%20Manual.pdf 13) https://www.iitk.ac.in/wc/data/IPC_186045.pdf 14) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC-/#CIT1