Pregnant inmates need bail, sentence suspension: Punjab and Haryana High Court

Saurabh Malik

Chandigarh, June 12

The Punjab and Haryana High Court has ruled that expectant and lactating mothers should be granted compassionate release from jail even in cases involving serious offences. In a progressive judgment aimed at restoring women’s sacrosanct freedom during motherhood, Justice Anoop Chitkara asserted: “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.”

Emphasising the need for care and dignity over incarceration, Justice Anoop Chitkara added that pregnant women and lactating mothers ‘need bail, not jail’. “They deserve temporary bail or suspension of sentence extending to a year after delivery, even when the offenses are highly grave and accusations severe. Those convicted with appeals closed, too, deserve similar relief,” he said.

Questioning the urgency of their pre-trial custody, Justice Chitkara asked: “What is so compelling urgency for pre-trial custody? Heavens will not fall and societies will not change overnight if incarceration is postponed!”

The assertions came as Justice Chitkara granted interim bail to a 24-year-old five-month pregnant woman incarcerated in a drugs case registered under the NDPS Act in July last year at a Moga police station. The order will remain in operation up to one year postpartum.

This may not be the first time a high court has granted bail to a pregnant woman. But this is perhaps the first instance of a Bench setting a precedent by taking into consideration the psychological, medical and societal aspects of pregnancy behind bars. In his ‘no births behind bars’ judgment, Justice Chitkara among other things quoted the law and related judgments, WHO, UNICEF and the Convention on the Elimination of All Forms of Discrimination Against Women, etc.

He asserted that it was difficult to be convinced that ‘our prisons’ could take the requisite care of pregnant women and lactating mothers. The court, consciously aware of the multi-faceted needs and requirements of pregnant women, could not simply brush them aside and look the other way.

Justice Chitkara added: “The child can’t be made to suffer for the wrongs allegedly committed by the mother. An expecting mother might eventually find herself acquitted, but the trauma of being born in jail will always remain confined within the prison of a child’s mind.”

Empathy required

To grant or not to grant bail to an expectant mother languishing in jail during pregnancy needs to be considered with empathy. Cradles of motherhood and nurseries of civilisation are in meadows and not in cages. — Justice Anoop Chitkara