Women as Custodial Minorities: Patriarchy, Prisons, and the Pandemic in India
15 July 2022 to 15 January 2023
In India, the question of democratic rights, civil liberties and incarceration has been read alongside the shifts in the penal policy of the carceral state. Mass incarceration of undertrials and overcrowding is a feature of Indian prison that marks every state document on prison reform. This kind of mass incarceration which expands with increasing criminalization of everyday democratic practices is not a pathology, rather it is built into the design of the prison. Hence, the problem of overcrowding of prisons is produced as an effect of power and knowledge.
Following the inscription of the disaster and epidemic laws in the wake of the COVID-19 pandemic, prisons were under lockdown, while new laws and policies were instituted to criminalise more areas of law and life during the pandemic. The shifts in practices of policing, new dockets due to the pandemic law, enunciation of new criminal offences and newer protocols increased number of arrests. The penal policy of the state and its institutional site – the prison has emerged as critical to contemporary understanding of democratic practice. This coincided with the emergence of online courts, which diminished the place of the press and the public in online hearings.
It is not surprising that mass incarceration of undertrials and the neglect of ‘custodial minorities’ is heavily oriented towards the marginalised and reviled castes, communities, genders, and classes. The production of mass incarceration processes aptly describe what Michel Foucault (1975) aptly described as a process of state ‘controlled delinquency’. Bail petitions or prison reform petitions then are pleas for claiming citizenship, as much about individual liberty
Women prisoners have drawn attention to the devastating impact of the penal policy on the bodies of women, children, the minorities and the marginalised, the brutalised and the afflicted, the elderly and the disabled, the subjugated and reviled. Prison jurisprudence is foundationally adult, able bodied and male. Apart from a few charismatic judgments, custodial rape, pregnancy, or childbirth is not seen as cruel, inhumane, and degrading treatment of women prisoners as women. Unusually cruel gendered, reproductive, and sexual punishment is built into the design of our prisons. Hence, producing a specific kind of gendered ‘custodial minority’ in the context of mass incarceration of undertrials. Moving away from an ‘additive approach’ to the question of women in prisons, this project seeks to trace how women prisoners have linked the inhumanity of the prison system with patriarchy in the devastating time of the COVID-19 pandemic.
Pratiksha Baxi is Associate Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. Baxi holds a doctoral degree from the Department of Sociology, Delhi School of Economics, University of Delhi. Her book, Public Secrets of Law: Rape Trials in India, was published by the Oxford University Press in 2014. Her research interests include critical perspectives on medical jurisprudence, ethnographies of courts, sociology of violence, gender studies, politics of judicial reform and feminist legal theory. She was awarded the Infosys Prize in Social Sciences in 2021. Baxi anchors the Law and Social Sciences Research Network (LASSnet).