Excerpts from an article published in The India Forum. Link to whole article given below.
A powerful analysis of the injustice of the prison system in India (in which 70 percent of the incarcerated are under trial), the authors PRATIKSHA BAXI and NAVSHARAN KAUR make an argument for recognizing women, as well as gender and sexual minorities, as ‘custodial’ minorities.
We argue that all women inmates may be defined “custodial” minorities. As per the 2020 statistics we collated, there are 68 persons incarcerated under the category “others”. No grave threat is posed to society by UTPs belonging to sexual and gender minorities that non-custodial alternatives cannot be found for them, while they wait for investigations and trials to be over. And alternatives to prison system need to be innovated for all convicted women, and gender and sexual minorities. There does not seem to be an attempt to recognise that their right to health and life is made far more precarious in a transphobic prison-medical complex. They must be counted and accounted for…
All women in prisons without distinction of charge, crime or sentence, whether pregnant, lactating, menstruating or menopausal, differently abled or ailing may be thought of as “custodial” minorities. Muslim women face terrible targeting and blame, as do Dalit women who face intolerable discrimination and bear the brunt of misuse of law against them. Similarly, Muslim and Dalit male undertrials are also subjected to sexualised forms of torture in police and judicial custody. And policies that exclude foreigners from interim bail position them as custodial minorities, who face institutionalised racism. However, the law has difficulty in “seeing” these prison inmates, especially undertrials, as custodial minorities.
The authors conclude that
for women, prisons are built with stones of ‘patriarchal’ law. It is time to campaign against incarcerated pregnancies and custodial childbirths as making for cruel, inhuman and degrading treatment of women. We must fully trace the impact of the sexual and reproductive politics of the state on detention practices that are normalised under the sign of the nation. To do otherwise, is to direct violence at women. It is time to campaign for an urgent moratorium on all fresh arrests of women, and of gender and sexual minorities, wherein no coercive action should be taken against women and gender and sexual minorities, and no custodial sentences should be handed out to such persons. All women and gender and sexual minorities should be released during the pandemic.
It is time to re-think the prison system as it exists from the point of view of gender and sexual minorities, a question that should concern all kinds of publics and movements, jurists and academics, people and their courts.