Pregnant Prisoner Accused Of Grave Offence Deserves Interim Bail Extending To One Year After Delivery, Subject To Safeguards: Punjab & Haryana HC

The Punjab and Haryana High Court has granted interim bail to a pregnant prisoner accused under NDPS Act, upto an year postpartum, observing that, "even when the offenses are highly grave and accusations very severe, they still deserve temporary bail or suspension of the sentence, extending to a year after delivery."

Considering the "everlasting detrimental impact" that birth in prison may have on a child's mind, Justice Anoop Chitkara remarked, "Pregnant women and lactating mothers need bail, not jail."

"Heavens will not fall, and societies will not change overnight, if incarceration is postponed! There should be no restraints during complicated and sensitive period of pregnancy, no restraints during labor and delivery, and no restraints for a year, at least, after giving birth," the judge added.

The judge however made it clear that such relief should come with adequate safeguards to prevent evasion.

"It is necessary that a woman may not take the shelter of being pregnant as an excuse for remaining out of jail custody as every other woman may prefer to get pregnant to remain out of jail. It should not become a story of the woman who was sentenced to life imprisonment for corruption and was able to evade a prison sentence for over a decade by getting pregnant thirteen times before being being sent to jail by a Court."

A 24-year-old woman who was in the fifth month of her pregnancy had moved Court seeking bail in the case pertaining to drugs trade under Sections 21, 22 read with 29 of NDPS Act, 1985.

It was submitted by her counsel that there is a lack of evidence connecting her with the intoxicants, which is based on a disclosure statement.

After hearing the submissions, the Court noted, "The petitioner is a young lady of 24 years and appears to be in the company of hoodlums. The question more important than the petitioner being a recidivist is that she is pregnant...'To grant' or 'Not to grant' bail to an expecting mother languishing in jail during the period of pregnancy needs to be considered with empathy and compassion. Cradles of motherhood and nurseries of civilization are in meadows and not in cages."

It noted further that, a growing body of research shows that prenatal stress can have significant effects on pregnancy, maternal health and human development across the lifespan. These effects may occur directly through prenatal stress-related physiological changes on the developing fetus or indirectly through the effects of prenatal stress on maternal health.

Giving Birth To Child In Custody May Have Detrimental Ramifications

The judge said, "pregnancy of a woman is a particular circumstance that needs to be appreciated. Giving birth to a child in custody may have detrimental ramifications on both, the physical and mental health, of the mother and the child, as prisons are not primarily designed keeping pregnant women or women with small children in mind."

The period of incarceration of the mother would someday be over but the stigma that would follow the child whenever questioned about their birth and the place of upbringing, would forever remain, inevitably altering child's outlook towards life, adversely impacting the way society will perceive such a child and the way the child will see the outer world, beyond the four walls of a prison. It will be traumatic if the mother is later absolved of the accusations or acquitted of the charges, added the Court.

Granting Bail To Expecting Mother May Encourage Her To Look Forward

The judge highlighted that, "The grant of bail to an expecting mother might factor in to encourage and motivate her to look forward and work towards ensuring a brighter future for her child, vowing to nurture the child so that they always stay away from the insurmountable slippery walls of a bottomless cage, that one is pushed in, when one enters the world of crime."

As a progressive society with a liberal and dynamic Constitution, automatically imprisoning a newborn will eventually reflect grave injustice. We recognise the criticality and gravity of such an issue, knowingly with an affirmative action prevent potential threats to the character of our people and to endeavour for our civilization to be on the right side of the history, added the Court.

Courts Must Insure Freedom In Motherhood

Furthermore, the Court opined that, pregnant women and lactating mothers need bail, not jail. "Courts must restore women's due and sacrosanct freedom in motherhood pro tanto. Even when the offenses are highly grave and accusations very severe, they still deserve temporary bail or suspension of the sentence, extending to a year after delivery."

In the light of the above, the Court granted an interim bail upto a year after delivery of the child. However, it directed that if the woman suffers the misfortune of miscarriage, she will have to surrender within 30 days. Another measure to ensure bail is not misused, Court said if the woman is found indulging in any criminality, her bail will stand cancelled.

The Court also said that "the relief shall not be given to her again if she becomes pregnant again during the pendency of this interim bail."

Mr. Sandeep Kumar Bokolia, Advocate for the petitioner.

Mr. Sukhdev Singh, AAG, Punjab,

Ms. Swati Batra, DAG, Punjab.