Law and Society

The Supreme Court’s Bail Policy in the Pandemic: The case for the Women Prisoners

Anoushka Chauhan

Screenshot 2020-12-08 153207


Making the case for interim release of women prisoners during de-congestation of prison on account of Covid.


As Coronavirus spreads across the country, prisons and jails of India become a special concern . India’s prisons are overcrowded, with the National Crimes Bureau recording the occupancy rate to be higher than 150% in certain states, compounded with their lack of healthcare facilities, certain additional measures are required, including the immediate de-congestion of prisons. The Supreme Court of India took suo moto cognizance of this issue, and ordered that relevant authorities and State Governments take precautionary measures and ensure social distancing in prisons. The Court ordered the setting up of a High Powered Committee in each State and Union Territory to determine which class of prisoners should be released on parole or interim bail. The Committee would have nearly-complete discretion over the categories of prisoners it chooses to release, to de-congest prisons, as long as it is in accordance with guidelines provided by the Court.

Through a letter dated 17th August, Dr. Uma Chakravarti, an eminent feminist historian, with several others, made a representation to the Delhi High Powered Committee, requesting it to consider women—among several other vulnerable classes of persons—as an entire class to be released on interim bail for the purpose of de-congestion. It cited reports, studies and statutes that outlined the vulnerable positions of women prisoners.

The Court, while giving the Committees broad discretion on what classes of prisoners to release, had laid down certain parameters to be taken into account. These included, the nature of the offence, the duration of the sentence, the severity of the charge, and “any other relevant factor(s)”. The Committee stated that it had met all the criteria, without shedding any light on what constituted other relevant factors in the process of determining which classes of prisoners would be released under the order.  The authors of the letter urged that one of the “other relevant factor(s)” must be the specific vulnerability of women in prisons. However, the representation requesting the consideration of women as a category for release was rejected as being ‘unmerited’ in a response dated 31st August.

Against this background, the piece analyses the Committee’s rejection of the representation in the light of the arguments the drafters of the letter forwarded—namely, the sociological disadvantages faced by women in prisons, the role of the Disaster Management Act, 2005, and the blanket eligibility criteria of pre-existing right to bail available to women. This piece argues that the representation letter was not ‘unmerited’ as the Committee’s rejection termed it, and will highlight the reasons why women should have the right to be considered as a separate class for the purpose of prison de-congestion due to Covid.

Prison Conditions

The reasons necessitating the consideration of women as a separate category for interim bail are quite clear. Firstly, women are in minority in prisons, and secondly, there is an inadequacy of gender-specific healthcare facilities. The Ministry of Women and Child Development in its 2018 Report described prisons as ‘male spaces’ where women make up a minority. What is structurally designed to house males, meagerly accommodates women, and has little to no healthcare facilities that cater to the gender-specific needs of women. Women are locked up in small congested rooms, and routinely subjected violence. The UN Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders, more popularly known as the ‘Bangkok Rules’,  set out gender-sensitive international standards for prisons that house female inmates. These norms, applicable worldwide, are rarely complied with in India. The Committee should liberally interpret the “other relevant factor(s)” to include within its purview, the disadvantages that women face in prisons, now excaberated by the pendemic

Pre-Existing Right to Bail

In its  directions, the Supreme Court emphasized that the prisoners’ eligibility to be included within the class must have a  pre-existing right to bail. Arguably, women and children already satisfy that criteria. The proviso to Section 437(1) of the Criminal Procedure Code states that for non-bailable offences, a person under sixteen years of age or a woman may be released on bail. In Mt. Choki v. State [AIR 1957 Raj 10], the Court held that releasing women accused of committing a non-bailable offence on special grounds is not discriminatory. Therefore, the most basic eligibility requirement imposed by the Court in classifying prisoners for interim release is already satisfied.

The Committee, in its response to this, detailed that whilst not being released as a separate class of prisoners, women would still have the legal recourse of applying for bail that they possess the right to, just not as an entitlement under the Supreme Court’s orders. However, the socio-economic standing of women convicts and prisoners makes access to bail procedures and justice itself relatively tougher, as highlighted by the Justice V.R. Krishna Iyer Committee on Women Prisoners Report. This report is of specific legal significance in this issue, as it was recognized in the case of Inhuman Conditions in 1382 v. State of Assam [(2016) 3 SCC 700], which the Supreme Court in its order for de-congestion stated, must be complied with.



Based on these observations, the question arises as to how the directions of the Supreme Court, regarding the parameters of severity and nature, can be effectively met with in a situation where women are considered as a separate class for release. While the Committee stated that the criteria of severity of charge and nature of offence had been taken into account, it is argued that women, children and transpersons (who have similar gender-specific needs and face discrimination) must be included in a separate class for release, and the other parameters of severity, nature of duration, be imposed as regulating mechanisms to reject interim bail in extraordinary cases of crime. The SC Order stated that the directions of arrest and bail in the case of Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] must be followed, which mandates arrest and detention where there is a probability that the accused may commit a further offence, tamper with evidence, etc. If these directions, along with the parameters the Court set up in the present order are used as control mechanisms to exclude certain individuals from the prisoners who are granted interim bail as a separate class, it is argued that the purpose and intent of the Supreme Court to curb the spread of the pandemic and protect vulnerable persons will be fulfilled.

The reason that the Supreme Court took suo moto cognizance of this issue was to control the spread of the COVID-19 virus in overcrowded prisons. Although women are equally susceptible to the virus as other categories, they have unequal access to healthcare in prisons, which puts them at a far greater risk of suffering, and of spreading the virus further. The fact that women do not have gender-sensitive healthcare options in prisons has been reiterated by multiple studies and government reports. It is submitted that where the reason for suo moto cognizance was to control the spread of the virus, it would be inconsistent with the intent of the Court to not consider the population most vulnerable to the spread of the virus in prisons.

The author is a student at the NALSAR University of Law, Hyderabad. 

Categories: Law and Society