The court’s reasoning extends a doctrinal arc running from D. Bhuvan Mohan Patnaik (1975) through Francis Coralie Mullin (1981): prisoners retain Article 21 rights, and dignity does not pause at the prison gate. By locating open prisons within Article 21’s guarantee of life and personal liberty, the Court makes the constitutional mechanism explicit: open prisons allow prisoners to maintain family bonds, earn wages, and participate in community life, giving institutional form to a right that protects not merely physical survival but dignified existence. The shift displaces the older retributive grammar of incarceration with one organised around rehabilitation and reintegration.

Empirical evidence reinforces the court’s constitutional framing. According to the most recent National Crime Records Bureau (NCRB) Prison Statistics India (2023) report, Indian prisoners operated at 120.8% occupancy with several states above 150%. The Court records that daily per-prisoner costs in an open prison are roughly ₹49.6 per day, compared with ₹333 in a closed facility. Open prisons thus represent a rare convergence of fiscal rationality and constitutional fidelity, reducing overcrowding, preserving familial and economic ties, and lowering recidivism while consuming a fraction of carceral expenditure.

The judgment’s force lies in documenting the structural failures through which constitutional entitlement has not become custodial reality. Open prisons constitute only about six per cent of total prisons (para 19); several states have none at all. Eligibility criteria, including conduct records, time served, and offence category, vary arbitrarily across jurisdictions, with required periods of closed-prison incarceration ranging from four to twenty-one years depending on the state (para 55). Nine states, including Assam, Gujarat, Odisha, Punjab, Uttarakhand, Uttar Pradesh and West Bengal, have formally excluded women from eligibility; in Delhi, Karnataka and Tamil Nadu, women are eligible, but no transfer has occurred in practice (para 49).  The Court treats this gendered carceral geography as a violation of Articles 14 and 21 of the Constitution of India read together, with Article 14 guaranteeing equality before the law. Equal protection cannot survive a custodial regime that reserves rehabilitative space exclusively for men.

The international legal framework reinforces this position. The UN Nelson Mandela Rules (Rules 4 and 89) require that imprisonment serve reintegration and that open prisons, relying on self-discipline rather than physical security, provide conditions most conducive to rehabilitation (para 27). In comparative terms, trust-based systems, including Norway’s open prisons and the United Kingdom’s resettlement estate, demonstrate that low-security custody reduces reoffending without compromising public safety. The judgment invokes the Bangkok Rules (Rules 40 and 45), requiring authorities to develop gender-specific classification and use open prisons and home leave to the maximum extent for women prisoners (para 51).

The judgment’s remedial architecture raises a structural question. The Court has constituted a High-Powered Committee chaired by Justice S. Ravindra Bhat (Retd.) to draft common minimum standards for open prison administration across states, and directed every High Court to register suo motu writ petitions as a continuing mandamus (a judicial mechanism that keeps the writ petition live to monitor ongoing executive compliance) to monitor compliance with annual reports due by 31 March 2027. Prisons fall within the State List, the constitutional schedule of subjects reserved for state governments under India’s federal division of powers (para 32). The boundary between corrective oversight and the displacement of state authority will be tested in implementation; whether the Court is filling a governance vacuum or normalising judicial management of penal infrastructure is a question the judgment does not resolve.

Suhas Chakma reminds us that their Constitution does not measure justice by the height of prison walls but by the possibility of human reintegration. Open prisons are constitutionally required, internationally validated and administratively rational. The Indian State must now move from confinement to correction, and from custody to constitutional rehabilitation.

Development of Death Penalty Safeguards

India’s death penalty jurisprudence has evolved to structure judicial discretion within a limited statutory framework. Section 393(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) requires ‘special reasons’ for imposing death sentence but leaves the term undefined. In Bachan Singh, the Supreme Court sought to address this indeterminacy by mandating courts to consider aggravating and mitigating circumstances and impose death only where life imprisonment is “unquestionably foreclosed.” While Macchi Singh diluted this standard by allowing the imposition of death penalty where life imprisonment was “inadequate”, Santosh Bariyar clarified that death may be imposed only where the sentencing aim of reformation is unachievable.  More recently, in Manoj, the Supreme Court mandated consideration of prison conduct reports, psychiatric evaluations, and probation officer assessments, reflecting a conscious attempt to structure sentencing discretion. In Vasanta Dupare, the Court elevated these requirements to the status of fundamental rights, holding that non-compliance would vitiate the sentencing process by virtue of violating fundamental rights. In April 2026, in Aman Singh, the Supreme Court reinforced that such material must be gathered at the trial stage, underscoring the need for timely assessment of aggravating and mitigating factors to meaningfully evaluate reformation. Yet, these safeguards remain confined to death penalty cases, reinforcing the exceptionalism that ‘death is different.’

The Unguided Expansion of Life Imprisonment without Remission

Appellate courts in India are empowered to commute a death sentence into different forms of ‘life imprisonment.’ In what may be termed ‘life imprisonment simpliciter’, the sentence carries the possibility of early release, typically after 14-16 years, under the BNSS and remission policies. However, in Swamy Shraddhananda, the Supreme Court held that appellate courts may exclude remission, requiring convicts to serve fixed terms (20-60 years) or the remainder of their natural life in prison. This power was affirmed by a 3:2 majority in V. Sriharan.

Recent trends indicate that nearly 60% of death sentence commutations in the past decade excluded remission. These sentences lack a principled framework and rarely engage with the question of reformation. This omission is significant, since excluding remission forecloses periodic review of incarceration and assumes incapacity for reform. Only recently has the Supreme Court begun to address this gap.

In Vikas Chaudhary, while examining a fixed 30-year sentence without remission, the Court cautioned against a purely retributive approach and engaged with the prisoner’s prospects of reformation. This reasoning suggests that exclusion of remission must be justified through an individualised assessment of reform. Similarly, the Court in Navas held that commutations must be guided by proportionality but framed it in backward-looking terms of gravity of offence and circumstances of the offender (mental health, socioeconomic status, age, etc.). It did not engage with the normative basis of remission, which rests on periodic reassessment of continued incarceration in light of conduct, reformation, and reintegration. Subsequent decisions illustrate this gap by showing that courts continue to exclude remission without articulating clear principles justifying such exclusion.

In Shambhubhai Padhiyar, the Court imposed a 25-year sentence without remission despite noting mitigating factors (youth, no prior criminal record, intellectual disability, and good prison conduct), without explaining why remission was foreclosed. Similarly, in Ramesh Naika, the Court surveyed prior cases but articulated no governing principle, ultimately imposing life imprisonment without remission for the remainder of natural life. These decisions reflect the absence of a coherent normative framework justifying foreclosing early release. Since remission enables early release through executive discretion, its exclusion necessitates material on record to justify foreclosing this possibility.

Conclusion

Across the decisions in Vikas, Navas, and Shambhubhai, courts invoke proportionality and reformation without explaining how these principles justify sentences that exclude remission. This leaves the basis on which the possibility of release is foreclosed insufficiently articulated. The exclusion of remission calls for a principled justification, given its implications for the continued justification of deprivation of liberty and pains inherent in punishment. While mathematical exactitude in sentencing may be impossible, the resulting discretion risks remaining unguided, echoing the concerns Bachan Singh sought to address. This calls for a principled sentencing framework that meaningfully governs the exclusion of remission in life imprisonment sentences.

Background

Article 22 of the Constitution of India recognises laws providing for preventive detention, i.e. detention without a trial.  These powers are an extraordinary measure, which operate outside the ‘normal’ criminal justice system. A detenu is not afforded legal representation, only a personal hearing [Article 22(5)]; and the detention order is only subjected to review by an executive body (the Advisory  Board) [Article 22(4)].

Constitutional courts recognise that these powers are a draconian measure, confer arbitrary powers to the state, should not be used to circumvent ordinary criminal procedure, and are part of the country’s colonial legacy. Nevertheless, time-and-again, their constitutionality has been upheld (see here, here and here). Originally enacted with temporal limits on their operation, they are fully entrenched in the Indian legal system with four central legislations and several state-laws authorising these powers.

The Problem of Misuse

The Crime in India 2023 report by the National Crime Records Bureau shows that 33,070 persons were detained in 2023 under various preventive detention laws; out of which, 16,758 were released by the Advisory Board itself. Therefore, about half of all the people detained were released after an internal, administrative review, without any judicial oversight.

Though there is not enough data on the number of detention orders quashed by pursuing the remedy of habeas corpus, several studies suggest that  most of the orders challenged before constitutional courts are eventually quashed. For example, an empirical study of habeas corpus cases before the Madras High Court from 2000 to 2022 showed that in 87.9% of the cases, the detention order was quashed (also see Madras High Court’s own analysis at para 15); similarly, a study of habeas corpus cases arising from National Security Act, 1980 at the Allahabad High Court showed that between 2010 and 2019, 73 out of 101 cases (72.2%) the detention order was quashed.

Penal Consequence of Preventive Action

Mr Wangchuk’s detention is not an aberration but another instance in a series of using the preventive laws against political dissent by the State. These powers have been routinely used against journalists, political opposition, and human rights activists (see here and here). In Mr Wangchuk’s case, the detention order is presumably for a speech given about two weeks prior to the incident of violence and in effect, punishes him for the violence that ensued.

The penal character to the detention also comes with Mr Wangchuk’s treatment as a prisoner instead of a detainee. He has been imprisoned in a solitary cell at Jodhpur Central Jail, far away from his residence in Ladakh and reportedly suffers from medical distress. While the habeas corpus petition against his detention remains pending, his detention in prison enters its sixth month. It is troubling that the extraordinary, preventive powers are used by the State to effectively punish the detenu, bypassing normal criminal justice procedures, which would afford him safeguards that are provided to every accused in a criminal trial.

Abolition Abroad, Abolition At Home

Abolitionists argue that carceral systems, such as police and prisons, are rooted in forms of oppression like settler colonialism, white supremacy, and patriarchy. In the context of Northern Ireland, abolitionists argue that the UK instituted a police force in Ireland and other British colonies as experiments in social control to protect the economic interests of white elites. For instance, the Police Service of Northern Ireland (“PSNI”) is a descendant of the Royal Ulster Constabulary, a militarized force trained by British police who cut their teeth in India and Malaya (now Malaysia).

By design, then, these institutions uphold systems of oppression. As a result, they do not resolve social conflict but rather cause greater harm to already marginalized communities. Reliance on police and prisons, therefore, should not be strengthened through reformist reforms. Instead, UK and Irish abolitionist organizations, including Abolitionist Futures, the Irish Penal Abolition Network, and End Deportations Belfast, argue that their use should be reduced by decriminalizing sex work, drug use, and immigration; repealing prison-building projects; and increasing community investment through social housing, education, employment, and/or healthcare.

Mixed Messages from the International Human Rights Regime

In contrast, the international human rights regime has increasingly relied upon criminal prosecution as the go-to response for human rights abuses. The European Court of Human Rights (“ECtHR”) has established that states may only meet their obligations under Articles 2 (right to life) and 3 (freedom from torture) of the European Convention of Human Rights if they maintain investigatory mechanisms capable of leading to prosecution for violations of these rights.

This obligation situates criminal processes as the benchmark of success in fulfilling these rights, even (and perhaps especially) when violated by the police themselves. Not known for its irony, the ECtHR has stated that, where police violate the right to life, the state must establish ‘effective criminal-law provisions’ supported by the ‘law-enforcement machinery’ that caused the violation in the first place, i.e. the police.

The Advocacy Gap: ‘Anti-Carceral Human Rights Advocacy’

Not all international human rights law conflicts with abolitionist objectives, however. Some human rights bodies have found that certain populations are over-policed; police abuse vulnerable populations; and prisons cannot support human dignity. Yet, these bodies often call for reformist (as opposed to abolitionist) reforms that strengthen these institutions, such as expanded technology and training programs, recruitment of officers from over-policed communities, internal investigation units, and community policing programs.

Similarly, in Northern Ireland, there exist human rights advocacy organizations that do not have expressly abolitionist missions and even promote criminalizing certain harms but broadly align with abolition.

One such organization, NIACRO (formerly Northern Ireland Association for the Care and Resettlement of Offenders), criticizes the minimum age of criminal responsibility, brings attention to the effect of imprisonment on families, and pursues restorative alternatives to prosecution. Sex Workers Alliance Ireland argues for the decriminalization of sex work based on the harm caused to sex workers by threats of prosecution. Participation and the Practice of Rights promotes community-based socioeconomic rights protection and critiques the white supremacist state’s responses to racially-motivated harms.

Without explicitly adopting abolitionism, these organizations recognize the institutional failings of carceral systems and advocate for alternatives. As a result, they can be described as “anti-carceral human rights advocacy” organizations.

Filling the Gap?

This assessment reveals a gap between abolitionist movements and international human rights advocacy in Northern Ireland. To combat the continued reliance on police and prisons in response to interpersonal harms despite their own histories of violence, anti-carceral human rights organizations might consider filling that gap by incorporating an explicitly abolitionist approach to their advocacy. Indeed, it may be time to question the position of carceral systems within Northern Ireland altogether.

Another prejudicial practice the court discussed is the discriminatory treatment against members of denotified/wandering tribes. Denotified tribes are tribal communities that were ‘notified’ by the colonial government as ‘criminal tribes’ under the Criminal Tribes Act 1871. These criminal tribes are tribes, gangs or class or persons “addicted to systematic commission of non-bailable offences” [97]. Wandering tribes are those that do not have a fixed place of residence. The colonial government had the power to forcefully settle these tribes at one place and declare them as a criminal tribe if no “lawful occupation” that connects with their wandering can be found. Being notified as criminal tribe invited higher scrutiny and surveillance by the British government, including confiscation of land and other possessions. However, post-independence the Criminal Tribes Act 1924 (a product of several revisions in the Criminal Tribes Act 1871) was repealed and these notified tribes came to be known as ‘denotified’ tribes.

However, the story of the oppression of these tribal communities did not end with colonial power in India. The colonial law and approach to law continued. Criminal legislations across different States defines ‘habitual offender’ and statutory laws empowered the colonial State to notify certain these denotified tribes/wandering tribes as habitual offenders. For instance, Rule 404 of West Bengal Jail Manual assumes that a person from wandering tribe has natural tendency to escape and therefore cannot be appointed to be a night guard. Further, Rule 411 of Madhya Pradesh Prison Rules,1987 automatically classifies members of DNTs as habitual criminals, even without prior convictions, based on perceived habits like gang involvement or theft. The Andhra Pradesh, Odisha and Rajasthan Manuals label members of wandering or “criminal” tribes as dangerous, prone to escape, and prohibit their employment outside the prison. These provisions came under constitutional scrutiny in Sukanya Shantha.

Discrimination

While the classification of a person or classes of persons as habitual offender is an individualistic or offence-based categorisation, in case of denotified tribe it targets the entire tribe. The classification makes several assumptions based on nothing but the membership of an individual in the tribe. The Court held that this is contrary to Article 15(1) of the Constitution of India that prohibits the State from discriminating against an individual on basis of caste or place of birth, among other factors. [175] The Court further noted that the unjust labelling of denotified tribes as habitual criminals or individuals of bad character, based solely on stereotypes, perpetuates and reinforces discriminatory practices against them. [175].

Untouchability

Further, the Court rightly held the segregation and categorisation of denotified tribes with habitual offenders to be unconstitutional for violating prohibition of untouchability under Article 17 and the right to equality under Article 14 [182]. The Prison Manuals assume that members of criminal tribes have a tendency to escape or commit offences like theft. These prejudicial assumptions are made purely on basis of their identity and any person born into these tribes will automatically be assumed to be a criminal; giving rise to a form of untouchability [182-183]. Further, the Court applied the reasonable classification test to determine if caste or being a member of a tribe can be a ground to classify the prisoners. The Court rejected the existence of reasonable classification since there is no rational nexus between the classification and objective of security or reform.

Conclusion

The Supreme Court thus struck down the provisions and directed all the State governments to revise their prison manuals/rules in light of their judgement within three months. The order of the Court requires deletion of ‘caste’ column from the prisoner’s register [231(iv)]. The Central government was also asked to make necessary changes to the Model Prison Manual 2016 and Correctional Services Act 2023. Importantly, the court directed that denotified tribes must not be subjected to any arbitrary arrests.

It is surprising that it took several decades for the Supreme Court to take cognizance of this matter and declare these prejudicial and biased provisions as unconstitutional. However, to prevent any such practices the Supreme Court suo moto took cognizance of this case in In Re: Discrimination Inside Prisons in India [231] and asked the registry to list the matter three months from the date of the judgement.  While the decision of the Supreme Court goes on to declare caste discrimination in prison manuals/rules as unconstitutional, these practices might still take place without legal sanction, but with societal acquiescence. The judicial route to prohibit and end such practices is inefficient since it’s decision will either strike down a law that allows such practices or on a case-to-case basis prohibit such practices in specific prisons. A more effective solution will be an executive-level overhaul of prison rules along with compliance monitoring body functioning under the supervision of the judiciary will be required.

Despite 75 years of the Constitution prohibiting caste-based discrimination, State governments have categorised and segregated prisoners and prison labour on the basis of caste. Shantha, through her scholarship (see here and here) exposes the regressive caste practices in Indian prisons including the caste-based division of manual labour. The professions and occupations that are considered dignified are allotted to those from the upper caste and menial work to those from the lower caste. This does not just categorise work on basis of their dignity but also individuals on basis of their position in social hierarchy. Further, prejudice against tribal communities by categorising them as habitual offenders is discrimination on basis of their caste or place of birth and perpetuation of colonialism by the Indian State and shall be discussed in Part 2.

Notably, state prison rules like The Rajasthan Prison Rules, 1951  explicitly allowed such caste-based labour practices by designating cooking and medical care as high-caste duties, reserved for Brahmins or sufficiently high-caste Hindu prisoners, while tasks like sweeping and cleaning are designated for lower-caste prisoners. Similarly, the Uttar Pradesh Prison Rules classify individuals from the ‘Mehtar shreni‘, a caste traditionally placed at the lowest level of the hierarchy and associated with manual scavenging, as the scavenger class. It further specifies that a convict should not be assigned degrading or menial tasks unless they belong to a class or community traditionally accustomed to performing such duties. For example, if a prisoner belongs to a barber caste, like the Naik community, he would typically be assigned hair cutting or shaving work in prison. Likewise, the West Bengal Jail Rules state that food must be cooked and distributed by prisoner-cooks of an appropriate caste, while sweepers should be chosen from the Mehtar or Hari castes, or from other castes, such as Chandal, if they traditionally perform such work outside prison. In the same way, the Madhya Pradesh Prison Rules assign one Mehtar to each latrine to ensure excreta is covered with dry earth and the same is cleaned and replaced. Similarly, the Himachal Pradesh Prison Rules state that menial work shall be performed by females of ‘suitable caste’. In many States, despite these discriminatory rules not existing on paper, prisoners were still assigned menial labour on the basis of their caste.

These rules in the Prison Manuals/Rules went against the direct constitutional protections against caste-based discrimination, violation of dignity, and untouchavility. The constitutionality of these provisions was considered impugned  in Sukanya Shantha.

Discrimination

The Court held the impugned provisions to be violative of Article 15 of the Constitution which prohibits the State from discriminating against an individual on the basis of caste [164]. It held that these provisions discriminate against marginalised castes by assigning them ‘customary’ roles like cleaning and sweeping, while the high castes are given tasks like cooking [171]. It noted that facially neutral phrases such as “menial jobs” to be performed by castes “accustomed to perform such duties” target lower castes and reinforce historical patterns of caste-based labour [173]. The Court emphasised that perpetuating such stereotypes in official documents, like prison rules, normalises the notion that these tasks are inherently suited to marginalised communities, further entrenching harmful societal hierarchies [175].

Untouchability

Discussing how prison manuals specifically assigned tasks to particular communities based on birth,  the Court highlighted how the idea of certain occupations being deemed ‘menial or degrading’ is deeply rooted in the caste system and the practice of untouchability, thereby violating Article 17 of the Constitution, which abolishes untouchability and its practice in any form. The Court further held that no social group is born as “scavenger class” [176].

Dignity and forced labour

The Court also held that assigning labour based on caste and compelling marginalised caste members to perform ‘menial’ tasks constitutes forced labour under Article 23 and the caste background of marginalised prisoners strips them of the freedom of choice typically afforded to other inmates, coercing them into specific types of work, such as cleaning and sweeping [195]. The Court also stated that Article 21 goes beyond the right to mere survival and ensures an environment of equality, respect, and dignity, free from caste-based discrimination that impedes an individual’s personal growth [187-188]. The Prison Rules, however, deny lower-caste individuals the dignity and equal treatment they deserve, further hindering their opportunities for reformation and personal development.

The Court’s judgment in Sukanya Shantha exposes not just the persistence of caste hierarchies within prisons but also their unsettling alignment with the very logic of incarceration in India – punishment as social ostracism rather than rehabilitation.  It compels us to reconsider whether carceral institutions in their current form can ever be spaces of transformation, or if they inherently perpetuate exclusion and dehumanisation. Moving forward however, the judgment offers hope for a more equitable prison system that prioritises rehabilitation over caste-based exploitation.

The “hard prison” regime before the Constitutional Court and the ECtHR

The “41-bis” system is devised to prevent members of organized crime from promoting their illegal activities from inside the prison. In doing so, it significantly curtails the rights of the detainee, isolating him from other inmates, reducing and imposing the videorecording of family members’ visits, and monitoring his correspondence.

In recent years, both the Italian Constitutional Court and the ECtHR have taken stance on the compatibility of the regime with fundamental human rights. The Italian Constitutional Court tried to “soften” the regime, declaring the lack of constitutional legitimacy of the prohibition to cook food, the prohibition to exchange objects with other inmates, and the control of the detainee’s correspondence with his lawyer.

The ECtHR, in turn, has never rejected the 41-bis regime as a whole (the Council of Europe’s Committee for the Prevention of Torture, on its part, has “call(ed) upon the Italian authorities to engage in a serious reflection on the current configuration and execution of the “41-bis” detention regime throughout the prison system, also taking into consideration Article 27, paragraph 3, of the Italian Constitution”). Yet, in Provenzano v. Italia, the Strasbourg Court found that the renewal of the measure despite the aggravating medical conditions of the detainee violated his right to dignity. The Court noted that the domestic authorities had to undertake “a genuine reassessment taking into account any relevant changes in the applicant’s situation”, which was absent in the case. Notably, the Italian authorities failed to adequately consider the aggravating cognitive conditions of the detainee, which could have prevented him from actively maintaining contacts with the outside criminal network. As to the physical conditions of the detainee, the Court concluded that the medical assistance provided and the hygienic conditions were not per se incompatible with his health conditions and, consequently, with his right to dignity under Article 3 ECHR.

The peculiarities of Mr. Cospito’s case

The case of Mr. Cospito, who suffered a severe physical deterioration but has intact cognitive skills, is likely to engage the second type of analysis. In that respect, a first indication may come from the United Nations Human Rights Committee (UNHRC), which was addressed by Cospito’s lawyers through a communication under the Optional Protocol to the ICCPR. The UNHRC retained the matter for consideration and, pending its decision on the merits of the case, requested Italy “to ensure that Mr. Cospito’s imprisonment conditions are in accordance with international standards and compatible with articles 7 and 10 of the Covenant”.

Moreover, Mr. Cospito’s peculiar situation adds a further layer of complexity to the matter, for at least two reasons. Firstly, his aggravating physical conditions result from the deliberate choice to pursue a hunger strike. This aspect came into play in the proceedings initiated by Mr. Cospito to obtain the transfer to home detention for serious medical reasons. In rejecting the request, though, the Court of Milan noted that the “self-inflicted condition of suffering … cannot be taken into account for the purposes of balancing the need to safeguard fundamental rights with the required effectiveness of the punishment”.

Secondly, Mr. Cospito has been the first anarchist to be subject to the 41-bis regime, which was originally designed for and has been historically applied to members of more structured and hierarchical organizations such as mafia. Yet, the Court of Cassation found that the existence and the dangerousness of the contacts between Mr. Cospito and the other members of his anarchical organization justified the imposition of the 41-bis regime, despite the Attorney General’s opinion to the contrary.

In June 2023, pursuant to an intervention of the Constitutional Court, Cospito’s sentence was reduced from life imprisonment to 23 years. While this change prompted Mr. Cospito to interrupt his hunger strike, he currently remains under a 41-bis detention regime. With new developments expected in fall, it is interesting to see how the Italian “hard prison” regime will last before the different treaty bodies and courts called to address its human rights implications.

Want to learn more?

Read: How the Prison System is Failing Women and Why it is a Human Rights Issue

Read: The Carceral State vs Indigenous Women’s Lives: Battling Contexts in the Latest Supreme Court of Canada Decision

Read: Request for UN Inquiry into Italy’s role in the Torture of Migrants and Refugees Pulled-Back to Libya

Which context matters in determining a breach of the right to equality? The aims of the state in punishing crime or the painful impact of colonialism on the lives of Indigenous women? The Canadian Supreme Court was divided on this question when evaluating whether removing the possibility of conditional sentences for certain crimes was unconstitutionally discriminatory on the basis of race. The majority decision myopically focuses on the legislative context in restricting sentencing options and marks a dangerous turn in Canadian equality law.

Background

In R v Sharma, Cheyenne Sharma was convicted of importing drugs. She is an Indigenous single mother, who lives in poverty and suffers inter-generational trauma from residential schools. In recognition of the over-representation of Indigenous people in the criminal justice system, s718.2 of the Criminal Code requires judges to consider all available sanctions other than imprisonment when sentencing Indigenous offenders. However, s 742.1 pulls in the opposite direction. It prohibits the use of conditional sentences in a range of circumstances. Sharma argued restricting the use of conditional sentences violated s15, the equality guarantee in the Canadian Charter, as the prohibition disproportionately impacted Indigenous people.

The equality law framework in Canada requires the claimant to demonstrate that:

• the law, on its face or on impact, draws a distinction on the basis of race; and
• the distinction reinforces, perpetuate, or exacerbates disadvantage.

The majority decision determined that she has not meet the first step. There are many worrying aspects in Sharma on proving indirect discrimination, but this post focuses on the second step of the equality framework. Pinpointing ‘what does it mean to reinforce, perpetuate or exacerbate disadvantage?’ has proven challenging for the Court. While there is agreement that determining the law’s relationship to disadvantage is a contextual assessment, there are deep fissures on identifying the relevant context.

The Majority: The State’s Good Purposes

The aims of the state in restricting conditional sentences, according to the majority, are the necessary, and seemingly only, context to determine if the law breaches the right to equality. Whether a distinction contributes to racial disadvantage entails examining, inter alia, the objects of the scheme and the policy goals to be achieved [59].

The heart of the equality analysis becomes an assessment of the state’s purposes. Implicit in this reasoning is that when a state has a salutary or ameliorative purpose there is no breach of the right to equality. A law cannot perpetuate disadvantage when the law has a salutary purpose. In Sharma, the reasons the goals of the carceral state in limiting conditional sentences would be dispositive of whether the law reinforced disadvantage against Indigenous peoples. Sharma lays the foundation for a narrow understanding of equality, and it would be consistent with Justices Brown and Rowe’s past jurisprudence.

Drawing such a tight relationship between the goals of the state and disadvantage will be devastating for the future of equality rights in Canada. The concept of equality under the majority’s reasoning is poised to become meaningless, as the aims of the law are seen as the only relevant context. Moreover, the Court is inappropriately collapsing the right to equality into an assessment of whether the state would be justified in pursing a law that perpetuates inequality. The analysis of the state’s purpose is the starting point for evaluating whether it is permissible to limit equality rights under s1 of the Charter. Identifying the state’s goals is analytically irrelevant for determining whether the law breaches Indigenous peoples’ right to substantive equality.

The Dissent: Centring Indigenous Women

Zoning in on the legislative context pushes any understanding of the lives of Indigenous women out of the s15 analytical frame. Justice Karakatsanis in her dissent, correctly focuses not on the goals of the state rather on the lives of Indigenous women. Adopting an intersectional lens, she centres the context on the history and contemporary oppression of Indigenous women.

Law and policies have created multiple, compounding, and intersectional forms of discrimination against Indigenous women. The residential school system, the overrepresentation of Indigenous children in state care, the continued disenfranchisement of the Indigenous women under The Indian Act, forced sterilization, negative stereotypes and ongoing epidemic of violence all grossly undermine the equality of Indigenous women.

This context is highly relevant to understanding why the prohibition on conditional sentences reinforces disadvantage against Indigenous women. Restricting conditional sentences forces judges to place Indigenous women, who are overrepresented in prison due to the context identified above, in prison when their ‘background conditions make them especially unfit’ for a custodial sentence [238]. Limiting conditional sentences for Indigenous people also undermines Indigenous visions of justice [239]. Requiring Indigenous offenders to serve custodial sentences ‘perpetuates overrepresentation…cultural loss, dislocation and community fragmentation.’ [241]. In Sharma, substantive equality demands a sentencing regime that is cognizant of Indigenous heritage and connection.

Conclusion

Merely examining the legislative context under the second stage of the equality frameworks reveals nothing regarding the legacies and patterns of systemic disadvantage nor does it grasp how those legacies and patterns interact with the impugned law. By elevating the state’s goals under s15, the majority preserved a status quo that has perpetuated substantive inequalities against Indigenous women.

The Odisha High Court, in December 2021, took a much-awaited step by directing the State Government to revise the wages being paid to prisoners for prison labour. Prisoners languish without pay or at best, pay that is substantially lower than the minimum wage required for bare existence. According to International Labour Organisation, ‘minimum wage’ is the bare minimum amount of remuneration to be paid by the employer for the employee’s work.

Courts’ approach towards prisoner wages and its overarching implications

The payment of ‘fair and reasonable wages’ (usually more than the minimum wage rate) for the work undertaken has been highlighted by the judiciary. However, the Apex Court in State of Gujarat v. Hon’ble High Court of Gujarat (1998) ruled that prisoners are entitled only to ‘reasonable wages’ (even lower than the minimum wages), determined according to the government’s discretion.

This was because prisoners fell outside the purview of the Minimum Wages Act, (MWA) as there exists no ‘employer-employee relationship’ between the State and the prisoner. The mechanism devised to let State governments formulate their own rules and regulations for wages, without a review procedure, seems to be desultory. The Prison Statistics Report of 2020 reveals massive disparities in the wages paid in different states, ranging anywhere between Rs. 8 to Rs. 225 per day. Moreover, the prevailing prison wage rates are nearly five times lesser than the desired minimum wage threshold (notified under the MWA), and are thus insufficient to live with basic dignity.

It is pertinent to note that the Court established an employer-employee relationship under the MWA, between the inmates and the jail authority, to justify the deductions in their wages for maintenance costs of food and general upkeep. Ironically, if such a relationship is established, then the prisoners are entitled to minimum wages under the same Act, revealing an inherently contradictory reasoning. Equating either of the stakeholders to an employer or employee is a fallacy, since their relationship is grounded not on mutuality but on compulsion, reaffirming that the State’s core function is to maintain the prisoners, not at the expense of their own wages.

Our objective herein is not to support the inclusion of prisoners under the MWA, but to highlight the massive gap between the ‘minimum wage’ threshold and prison wage rates that are being paid under the guise of being ‘reasonable and fair’. Considering that there exists no test to decide the reasonableness of the prison wage rate, the Odisha High Court’s move in revising the abysmally low wages is a harbinger of hope for prisoner’s rights.

This quest is not only confined to the Indian landscape, but is a global struggle, with international conventions like Article 23(3) of the UDHR supporting the fundamental caveat of crystallising the importance of being paid ‘just and favourable remuneration’ for the work done. In United States, for example, states like Kansas are paying prisoners less than $1/day by misusing the fact that judiciary has denied the payment of minimum wages to prisoners, since there exists no employer-employee relationship.

The road ahead and desired changes in status quo

The Prisoners Act is archaic and should be amended to incorporate a prisoner-friendly and humane approach to rehabilitate them. The High Courts should also refer to the invaluable safeguards regarding payment of ‘fair wages for work undertaken’ from the Model Prison Manual and constitute committees for periodically revising the prison wages, while using the MWA as a guiding metric to gauge a truly reasonable wage rate.

The most jarring loophole in the current 2021 judgement is the interpretation which allows authorities to justify the deduction of costs for maintenance of the prisoners. Allowing the State to deduct maintenance costs is equivalent to prisoners paying for their very own imprisonment. Though minimum wages will not be applicable due to lack of an employer-employee relationship, the Apex Court should review its 1998 stance and declare the provision of truly ‘fair and reasonable’ prisoners’ wages to be a justiciable right.

By no means is this to assert that women do not or cannot commit crimes, but rather to demonstrate that in most cases, the root of what is placing women in prison, and the conditions under which society keeps them imprisoned, are violations of human rights. Solutions like gender responsive programming run into the paradox of attempting to eliminate the oppression of women because of perceived differences, by highlighting those differences. But the actual issue is that the world exists in a patriarchal space, placing gender-specific expectations on women. So, reform can take place only by either acknowledging those differences or by seeing a total end to the system that perpetuates inequality.

The Justice System is Designed for Men, by Men

Globally, it is apparent that justice systems are designed for men. Still, some argue that women benefit from stereotyping and gender discrepancies. For example, a study conducted in the U.S. found that officials are more lenient with female offenders. But men being brutalized and treated harshly is still an issue with the patriarchal nature of society and serves to help no one. Additionally, law officials use their personal standards for women (what they deem appropriate behavior) as a sentencing guideline, harshly penalizing, and reducing the credibility of any woman that does not fit their stereotype. Altogether this greatly impacts women’s access to justice.

Once in prison, there are a lack of resources and facilities. This results in overcrowding, being held at higher security units than necessary, less access to rehabilitation programs, and women being further away from their families when compared to male prisoners. Also, facilities lack the healthcare that women need. Access to sanitary items, hot water, obstetricians, and medication for sexual diseases (women who are sex workers are commonly imprisoned globally and women are particularly vulnerable to contracting sexually transmitted infections and diseases) are extremely limited or nonexistent. The UN Standard Minimum Rules for the Treatment of Prisoners outlines that there is to be no cross-gendered supervision, women and men are not to be jailed together, and women are entitled to special pre-natal and post-natal accommodations and treatment. Violations of this include women being shackled while in labor and being denied medical care when giving birth. Finally, it is unfortunately not uncommon that women experience sexual assault at the hands of staff. There are reports of unnecessary strip searches being conducted, women being raped or assaulted before execution, as well as many other grotesque violations. This violates several points by CEDAW and the Bangkok Rules.

Solutions

The blatant disregard for human rights issues that concern women and the justice system is outrageous and solutions must be found. Potential solutions for this include specific, informed programming (awareness of women’s issues, sexuality, relationships, and mental health). As for police reform, things such as removing mandatory arrest policy, education surrounding gender issues, as well as collaborating with activists, justice officials, and health professionals can help eliminate these violations of women’s rights. It is most important to hold countries and justice systems responsible for their direct or indirect legalization of women’s rights violations.