–Ms. Lovleen Sharrma & Sakshi Komal Dubey
As per the Prison Statistics India Report, 2021 the figure of prison inmates in women’s jails adds up to 3,808. The Women In Prison Report, 2018 which sought to study the condition of women prisoners highlighted that the prison population increased drastically, and had therefore created challenges pertaining to health, hygiene, and overcrowding. As per the data, menstruating women construe more than 50% of the prison population. One of the key findings of the Report stated that “the insufficient provision of water and menstrual hygiene products is a serious concern”. The report also reveals that most jails lack essential facilities for sanitation and hygiene. In some prisons, women were reportedly charged for sanitary napkins, or were provided with a fixed number of napkins and not as per their needs. While some prisoners could ask for the required sanitary pads from their families during mulaqats, but the stigma surrounding ‘menstruation’ is another impediment. Thus, women are forced to use unhygienic products such as used sanitary pads, rags, cloth, ash, etc.
A prisoner, be s/he a convict, or an undertrial does not cease to be a human being even when behind the bars, s/he is entitled to all the basic human rights and Fundamental Rights. Menstruation is a natural biological phenomenon that cannot be purged. A report prepared by the Commonwealth Human Rights Initiative (CHRI) & Haryana State Legal Services Authority (HALSA) in compliance with the Supreme Court’s order passed in Inhuman Conditions In 1382 Prisons, In Re underlined that “there is no exclusive prison for women in Haryana”. Furthermore, while depicting that a few jails were not providing sanitary napkins to women it stated, “In Karnal jail, women had to buy sanitary pads”.
The possible inimical health impacts of not using the right menstrual health hygiene agents directly violate the fundamental rights guaranteed by the Constitution of India. A study commissioned by United Nations Populations Fund (UNPF) describes ‘menstrual health’ as “an encompassing term that includes both menstrual hygiene management as well as the broader systemic factors that link menstruation with health, well-being, gender, education, equity, empowerment, and rights.” Another research conducted in Kenya climaxes the importance of appropriate menstrual products. The lack of availability of suitable feminine hygiene products includes irregularity in the menstrual cycle, irregularity in a menstrual flow known as amenorrhea, and dysmenorrhea. Further, research published by the Journal of Cancer Research and Therapeutics which aimed to find a correlation between menstrual hygiene management and cervical intraepithelial neoplasia and cervical cancer concluded that the use of old rags is a significant basis for cervical cancer.
It is the responsibility of the state to ensure that every individual gets to enjoy the basic rights in the true sense but as no single individual behind the ‘sovereign body’ can be held liable, omissions made by the state go uncatalogued. This responsibility is unguided in the absence of legislation. The sword is double-edged, on one hand, adequate means are not provided to the prisoners and at the same time, medical facilities are scarce inside prisons. Article 21 of the Indian Constitution states that everyone deserves a dignified life but not much has been done for those behind the bars to give true meaning to their right.
Section 55A of the Cr.P.C. states that “It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused”. However, the legislation fails to address that whom does the accused is hold accountable in view of non-compliance with this statutory safeguard. Further, Section 13 of the Prison Act, 1894 embodies that every prisoner has the right to maintain his health and live in a clean and sanitized environment in the prison. This responsibility has been vested on the medical officer of the prison.
Prison and its administration are a subject mentioned under the List II of Schedule VII of the Constitution, therefore, making it an onus of the State Governments to discharge their duties accordingly. When the Supreme Court emphasized the need of uniformity in the administration of the prisons, the Model Prison Manual Committee was set up. To further the ends of uniformity, the Central Government introduced the Model Prison Manual.
The Model Prison Rules 2016 (‘Prison Rules’) recommends basic guidelines for the health and hygiene of the prisoners following the guidelines of UNESCO. It required the availability of clean and sufficient water for women prisoners especially those who are feeding their children and menstruating. While addressing the prison reforms holistically the Prison Rules in Chapter XXVI spells out that “Sterilised sanitary pads should be issued to women prisoners as per their requirements.” The Rules make it mandatory for the states to provide sufficient water and toiletries necessary for maintaining health and cleanliness. The Rules mandate that each menstruating female prisoner shall be supplied with a suitable number of sanitary napkins. While these rules, guidelines, and suggestions paint an ideal picture for the prisoners, the testimonials and reports are contrary.
The guidelines inculcated in the Prison Rules are motivated by the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘Bangkok Rules’). It states that the facilities for female prisoners should be such as to meet the requirements of women which includes a regular supply of water. Before the Bangkok Rules were adopted, the needs of women were not addressed in the international archetype. The Bangkok Rules provide that women prisoners should have menstrual products readily available for them as it will relieve them from the financial burden of incurring expenses to purchase them. The United Nations Standard Minimum Rules for the Treatment of Prisoners (‘Nelson Mandela Rules’) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) promote high standard of physical and mental well-being of the prisoners. Menstrual hygiene is a necessity and not a privilege.
Even though sufficient rules and regulations have been laid down, they all go in vain as there is no International Institution that has fairly been able to enforce them.
Delving deeper into the desirability of the fundamental right, Article 21 of the Constitution guarantees a life of dignity to “all persons”. Admittedly, the present issue has never come across the Apex Court; on various occasions, the Court has interpreted the Right to Health to be an intrinsic part of the Right to Life. In T.K. Gopal v. State of Karnataka it was observed that regardless of the crime committed, a prisoner is entitled to be regarded as a human being entitled to all the fundamental human rights, dignity, and sympathy. The fundamental rights guaranteed by the Constitution do not divorce the person as s/he enters the prison although they suffer contraction compelled their legal status. As Justice V. R. Krishna Iyer pronounced, “Prisoners have enforceable liberties devalued may be but not demonetized; and under our basic scheme, Prison Power must bow before Judge Power in fundamental freedoms are in jeopardy”.
In D.K. Basu v. State of West Bengal, the Court settled that the right guaranteed by Article 21 cannot be denied to convicts, under trials, detenus unless done so in accordance with the procedure established by law. The Apex Court in Rama Murthy v. State of Karnataka identified health and hygiene as an issue that required immediate attention. In Parmanand Katara v. Union of India, the Supreme Court held that no person can be denied basic medical attention. Ergo, a citizen’s right to life cannot be deemed to be suspended due to his or her incarceration. As embraced by the Court itself, when constitutional rights or statutory mandates go astray, the Apex Court would not hesitate in intervening even in the administration of the prison. In Sunil Batra (II), the Court shielded the prisoners from prison vices with the shield of Article 21. It is no more res integra that the obligation is on the State to discharge the duty.
Here, we shall not deflect from the objective of imprisonment; it is ultimately to safeguard the society against the crime. This objective can be fulfilled only if the period of incarceration is utilized for reformation and rehabilitation and used not as a modicum of punishment. The objective will be defeated if the imprisoned succumbs to death due to inaccessibility of feminine hygiene products.
Conclusion & Suggestions
A change began in the United States when the courts upheld the right to bleed with dignity. This pushed the government to recognize the rights legislatively. The legislation brought by the States in the US, Belgium, and the UK amongst other countries indicates that statutorily recognizing the right of menstrual equity is the next step towards improvement. One such legislation was passed by the State of Maryland, the Senate Bill 598 requiring the ‘correctional facilities’ to have a written policy and procedure ensuring that female prisoners are adequately supplied with menstrual management products. It mandated the inclusion of the supply of such products on both routine bases and on request. The availability of the products was even made subject to review.
Though, the Prison Rules incorporate all suggestions of the Bangkok Rules, however, due to lack of accountability the prison administrators are absolved of any onus; holding the administrators liable for their acts has proved to bring a change. Albeit, the authorities of some prisons have taken an affirmative step to train women inside the prison to manufacture sanitary napkins for themselves, it still calls for stricter implementation of the Prison Rules. The authorities shall make sanitary napkins available in common spaces as it saves menstruating women from the embarrassment of asking.
To sum up, to solve the menace it is crucial to implement the existing rules and introduce new measures to fill the gap. Menstruation shall not be cramped to a “women’s concern”.
Ms. Lovleen Sharma in an Assistant Professor at the Vivekananda Institute of Professional Studies. Sakshi Komal Dubey is a third-year student of B.A. LL.B. (Hons.) at the same Institution.