Need of Granting Interim Bail to Pregnant Women Undertrials

Synopsis: Even though Pregnant women and children cannot get the Covid-19 vaccination,  they continue to remain in prisons. The court has to provide interim bail to women, children and other vulnerable sections in prison.


Long pending prison reforms, overcrowded prisons made the situation of prisoners in India very cruel. The state of women’s prisons is much worse than male prisons. But so far the courts do not consider this condition in granting bail to the persons.

Status of women prisoners:
  • So far, bail jurisprudence does not empathize with women and children, or the elderly.
  • Similarly, the courts do not consider Custodial rape, pregnancy, or childbirth and degrading treatment of women prisoners as cruel or inhumane.
  • While granting bail the court does not consider the rights of children of imprisoned parents.
The recent case:
  • In State v. Suman Kumari case, Delhi High Court made a departure from bail jurisprudence. The court regarded the Rights of children of an imprisoned parent and provided bail to a woman.
  • This was a case of dowry murder allegation. In this case, the court mentioned that the imprisoned woman (accused sister-in-law of the dead victim) was also the mother of a 21-month infant. From December 9, 2020, the mother was in prison.
The reasons stated by the court for granting bail:

The court granted bail by mentioning that the Imprisonment of mothers amounts to the “de facto detention of their infant/toddler wards”. The court also observed,

  1. This is a serious violation of Article 37 of the United Nations Convention on the Rights of the Child, 1989.
  2. Furthermore, the court also held this as a violation of the Juvenile Justice Act, 2015. As under Section 3 of the JJ Act, the best interests of the child are considered paramount. Further, the Act suggests “institutionalization of the child as a step of last resort“.
  3. The court also points out that the child under “de facto detention” must not suffer worse custodial conditions than the children in conflict with the law.
  4. In this case, the court considered “empathy” as “the ground for bail”.
Impact of the Covid-19 in Prisons:

This order is more significant as the Covid-19 virus attacks increased in prison. The Covid-19 cases in prisons include,

  • In Tihar Jail, so far(up to April 17) 117 prisoners and 14 jail staff found infected with the Covid-19.
  • 55 prisoners and 4 jail staff infected with the Covid-19 from the Sabarmati Central jail.
  • In Maharastra, 198 prisoners get infected due to the Covid-19.
Disaster Management Act, 2005 on prisons:

At the beginning of the Covid-19, the Disaster Management Act, 2005 (DMA) mentioned overcrowded prisons as hotspots of mass contagion. Further, as per the Act, the state government needs to take mandatory mitigation, rescue, or relief works.

Section 61 of the DMA mentions that the state must provide compensation and relief to the victims of a disaster. The Act also mentions the state shall not discriminate based on the ground of sex, caste, community, descent, or religion.

Earlier committees on women prisoners:
  1. In 2020 the NHRC recommended state governments for releasing women prisoners. Especially the pregnant women and mothers with children from prisons. But, most states did not fulfill the recommendations.
  2. Similarly, in 2020, the high-powered committee of the Delhi High Court did not release all pregnant women or mothers with infants. The high-powered committee mentions the type of offence, duration of sentence, nationality, etc as a condition to release women in prisons. The committee upheld the Prison rules above the DMA.

The high-powered committee failed to read the DMA along with the prison rules. If it read it together, then the most vulnerable population in Prisons such as women, children, and transgender prisoners might receive relief, mitigation, and compensation.

Read Also- :Appointment of Police officers for Prison

Suggestions to improve the condition of vulnerable prisoners:
  1. The court while hearing the case, shall consider the release of women, children, and trans-prisoners. Also, the court should provide support for their survival.
  2. The court should consider situations like Custodial rape, pregnancy, or childbirth with seriousness, and move towards Gender-Sensitive prisons. This is feasible by creating a system of imprisoning women, children, sexual minorities irrespective of their offense, nationality, or exceptional laws
  3. The Courts also need to strengthen the law’s legal journey for humanity instead of historical attachment to the custody of prisoners.

Source: The Indian Express

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