Gender Justice Behind Prisons: A Study of Women in Pre-Trial Detention and their Legal Safeguards in the State of Madhya Pradesh, India

Abstract

The criminal law is built on the foundational principle of the presumption of innocence, i.e. a person is presumed innocent until proven guilty. To strengthen this, the national legal framework and the judiciary in India have constantly emphasised ‘jail as an exception and bail as a rule.’ However, in practice, the default rule has been otherwise. The criminal justice system and its institutions – police, prisons and courts have, over the years, extensively used pre-trial detention as a measure of weaponisation. This research proposal examines the inappropriate and widespread application of this measure on women and highlights the far reaching social, economic and emotional impact it causes to them. This exposes the gendered and intersectional barriers that restrict women’s access to legal aid and bail. It draws on the ever-expanding body of feminist scholarship to argue that the pre-trial custody operates as a form of gendered oppression that reinforces structural inequalities, thus reproducing harms for women, their families and communities. The proposal concludes that there is an urgent need for investment in gender-sensitive, non-custodial, abolitionist and community-based measures to advance women’s decarceration and fulfil the idea of transformative justice for them.