Less than a year ago, Safoora Zargar, an MPhil. student of Jamia Millia Islamia was granted bail, with a personal bond of Rs.10,000 on ‘humanitarian’ grounds owing to her pregnancy. She assisted in organizing peaceful protests in north-east Delhi against the CAA, 2019; being part of the Jamia Coordination Committee (JCC). Delhi Police inculpated her to be the “key conspirator” in the unrest created by flaring up communal tension aspiring to uproot the government by illegal means. Her detention under the Unlawful Activities (Prevention) Act, booked with 18 criminal activities including possession of arms, rioting, incitement of violence, attempt to murder, murder, sedition and promoting enmity between different religious groups was opposed by the International Federation for Human Rights, American Bar Association and United States Commission on International Religious Freedom, among other human rights organizations.[i]
23-week pregnant Zargar was no exception. 39 deliveries have been reported in the Tihar Jail in the last ten years, a report by the Delhi Police stated “There is no exception carved out for pregnant inmate, who is accused of such heinous crime, to be released on bail merely because of pregnancy. To the contrary, the law provides for adequate safeguards and medical attention during their custody in jail,” it further stated.[ii] Zargar’s council, Nitya Ramakrishnan submitted that her incarceration was unnecessary and detrimental to both Zargar’s health and the foetus’ health.By Veedhee Raval
In 2016, Bhavna Prajapati, a 5-month pregnant woman, was granted bail in the case of dowry death when the court took the ‘humanitarian view’. She was released before delivering her baby on an 11-month long bail time and went back to the prison with her new born.[iii]Apart from the case, exclusive rationale that affects release on bail, the Indian Government guarantees basic medical facilities and provisions for physical, reproductive and mental needs of pregnant women in prison. The National Prison Manual of 2016 provides that-
- The concerned authorities must ensure all the essential facilities vital for delivering the baby, pre-natal and post-natal care of prisoner and the baby.
- If the pregnant prisoner is a minor of casual offender, then there can be suspension of sentence.
- On finding the pregnancy of the prisoner, she should be examined in the female wing of the district government hospital. The duration of pregnancy, health of prisoner and probable date of delivery should be ascertained and reported to the Inspector General of Prisons, which shall include the admission, sentence and release details of the prisoner as well.
- Calorie intake and food variety of the Pregnant or lactating prisoners to be increased who require more protein and minerals than usual, as per the Prison Manual. Facilities to boil water and milk also provided.
- The right of the Prisoners to keep their children until they turn six, in the prison.
- It is right of the expecting prisoner to have parole or a temporary release to deliver her child unless there is high-security risk, in which case the parole will be denied.
These are among the several guidelines laid down for the welfare of pregnant prisoners carrying the future of the democracy.[iv]
The circumstances that Safoora finds herself in, is not novel. A pregnant prisoner in one of Maharashtra’s jails tested positive for COVID-19; while being taken care of by the district government hospital appointed gynecologist, she is being treated for the virus as well. From the records of 2015, out of 419623 prisoners, 17934 were women. It is not far-fetched to assume that considerable number of women would have been pregnant at some point in prison.[v] Moreover, the very fact that there are laws governing the treatment of pregnant women in custody, manifests that an expecting lady can, in fact, be apprehended and mere pregnancy is no grounds for granting bail if there is sufficient evidence for forming a case against them.