Respect Privacy And Dignity Of Pregnant Women Prisoners: Calcutta HC

The Calcutta High Court in a recent hearing reconsidered the case of women getting pregnant in the correctional homes and prisons of West Bengal. On Tuesday, the court cautioned against making unnecessary implications against women prisoners or making them undergo "secondary victimisation" through a court process. The court has asked to respect the privacy of the women prisoners.

A bench headed by Justices Joymalya Bagchi and Gaurang Kanth said, "We would request all parties concerned, particularly counsel, not to divulge identity (of pregnant women prisoners) or other particular which may lead to lowering of dignity and respect of women. Whatever it may be, they are already victims. They may be in correctional homes for some crime but they are to be treated in a way they can be rehabilitated back in society." 

Considering the privacy and dignity of the women prisoners, the court refused the suggestion of amicus to make every woman undergo a pregnancy test before entering the prison. The bench said, "The extent of intrusion into her privacy will be commensurate with the necessities of her detention. If she wishes, there must be a voluntary agreement to a pregnancy test. We don’t propose unnecessary intrusions into privacy just because someone is a suspect and has been brought as an undertrial,”

The court observed that the system is supposed to protect the vulnerable people in the prison population. Such prisoners cannot be made objects of excessive surveillance. Justice Bagchi said, "It is like saying ‘there are catcalls on the street, lock up the women’. We don’t propose such a procedure. Don’t go for too excessive intrusive measures." 

Referring to the amicus's submissions on women getting pregnant within the prisons of the state, the bench observed that it is not denying the existence of the problem. The bench even said that it respects the work that the amicus has done and will look into it.

However, the court remarked, "We know the extent of what [work] you have done in prisons and we definitely intend to weigh in your experience and research. What we intend to say is let there be some degree of sobriety in the process of how we approach the problem."  

The Supreme Court took suo motu cognizance

On February 9, the Supreme Court took a suo motu cognizance of the alarming increase in the number of pregnancies happening within the prisons across the country. A bench comprising Justices Sanjay Kumar and Ahsanuddin Amanullah is currently hearing the PIL about the overcrowding crisis in Indian prisons. Senior Advocate Gaurav Agarwal has been appointed to deal with the PIL, look into the matter and report back to the court.

Last month, the Supreme Court issued directives urging states and union territories to take immediate action in prison reforms and improving the jail infrastructure. Among many other directives, the court ordered the formation of district-level committees to evaluate the present conditions of the jails and to find out the required change in the infrastructure of the jails. This directive was issued under the Model Prison Manual 2016. 

However, as per reports, on February 14 the Supreme Court was told that most of the pregnancies in West Bengal jails happened outside the jail.  The amicus curiae and Senior Advocate Gaurav Agarwal submitted a report before the Supreme Court which stated that many women prisoners were expecting even before entering the prisons. The report also said that many women went on parole and came back expecting a child.

As per the information received from ADG & IG Correctional Services, Advocate Agarwal said that 62 children were born in the jails of West Bengal in the last four years and 181 children are living with their mothers in different prison facilities. 

Advocate Agarwal recommended various measures for prison reforms and recommended that the senior lady judicial officers in the districts assess the security measures in women's jails. He also recommended that women personnel be appointed for the security and welfare of women prisoners. Moreover, health check-ups of the women prisoners before entering the prison and at regular intervals were also recommended meanwhile strengthening the health infrastructure of the prisons. 

"In jails where there are children, it may be advisable that a lady member of the Child Welfare Committee of the district is also associated to examine the availability of crèches, schooling, and other facilities for children who are lodged with their imprisoned mothers," the report by amicus curiae and Advocate Agarwal stated. 

The court has yet to give out its verdict. 

The Amicus Curiae's report to Calcutta High Court

On February 8, an amicus curiae told the Calcutta High Court that women prisoners were getting pregnant in prisons in West Bengal. The court was further told that 196 babies have been born in different prisons of the State. 

This finding was mentioned during the hearing of a case related to prison reforms and correctional homes in the state of West Bengal. “Learned amicus curiae has mentioned these matters and has placed a notice pointing out certain serious issues. One such issue is woman prisoners while in custody are getting pregnant and at present as many as 196 babies are staying in different prisons of West Bengal,” the court said.

More about the findings

Addressing the concern of the women in the prison, the amicus suggested that male employees of the correctional should not be allowed to enter into spaces enclosing women prisoners. "I pray for a total prohibition of male employees of correctional homes, in the enclosures where women prisoners are kept,"  the amicus said. Other suggestions were also made in the note addressed to the court and dated January 25. The amicus also added that he had visited a correctional home in the state where one woman was pregnant. Moreover, there were 15 children in the same correctional home.

The court's statement

The case was presented before a division bench of Chief Justice TS Sivagnanam and Justice Supratim Bhattacharya. The bench said that the submission was serious and would be placed before a decision bench hearing criminal cases next Monday.

“In order to have an effective adjudication of all these matters, we deem it appropriate that the matter should be placed before the Hon’ble Division Bench having criminal roster determination,” the court said addressing the matter.