[The paper revisits laws related to detention and the rights of pregnant women, rights of Fetus and children born in prison in light of Safoora Zargar Case]

Introduction

On April 10, 2020, Safoora Zargar, an M Phil student from Jamia Millia Islamia College was arrested on charges under the draconian Unlawful Activities Prevention Act (UAPA) alleging her involvement in the recent Delhi riots where around 56 people died and several hundred were injured. This sparked a nation-wide campaign and it was claimed that the UAPA, which is ideally deemed to classify terrorist elements and organizations, is now being exercised as a tool by the government to curb free speech and expression.

Along with Mrs Safoora, a handful of other students were also arrested and charged under the same act. The ongoing controversy is also fueled by the idea of the UAPA being recently amended by the current BJP led government at the centre, which amended Sec. 35 of the said act and now even individuals can be labelled as terrorist, a label or an attribution previously only available for organizations.

Being arrested under this stringent law, the issue was highlighted as Safoora Zargar was involved in protesting against the recent Citizenship Amendment Act which seeks to grant citizenship to migrants from 3 selected countries while excluding a ‘certain community‘. [She was finally granted bail after waiting for 74 days]. As the right to peacefully protest and criticize the government is a fundamental right guaranteed under the Right to Free Speech and Expression, this issue is being endorsed as the government being violative of the citizen’s fundamental rights and clamping down dissent with an iron fist, much like an autocratic government.

A few weeks after the arrest,  it became a major humanitarian issue the moment it was discovered that Mrs Safoora was 23 weeks pregnant and was being held in custody during these pandemic times where the prisons are very susceptible to an outbreak. Even when a majority of undertrials were being doled out bails concessionally, Safoora Asghar is being deprived of it since she is charged under the anti-terror law. It is pertinent to mention that under Sec. 43(D) of the act, the maximum period of detention can be extended to 6 months if required before filing of charge-sheet.

Furthermore, no bail is to be granted if the accused is not a bonafide citizen of the country and has entered the country without required approvals, or if the accusation is, upon perusal of the contents and the case-diary looking to be true on the face of it. Also, the public prosecutor is to be given an opportunity to be heard whenever bail applications are to be adjudicated. Thus, the whole idea tells us that the bail of Mrs Safoora was one that was anyways hard to secure and the allegations imposed to have been really serious.

Now, the idea of stringency of such law, coupled with the pregnancy of the accused as well as the ongoing COVID-19 pandemic leads us to think whether the detention of Mrs. Safoora Zargar was in, itself a gross of violation of the Right to Life for her unborn child, as imprisonment during these times itself perpetuates a heavy risk over her life in these conditions, and more so to her child, who in all fairness, is innocent. Also, the prescribed facilities for pregnant women and children born in prison is also an important part that needs discussion and better enforcement.

Legal Rights of a Fetus

The rights of a fetus in all essence is the crux of this discussion, for without understanding that, no further claims over the concessional benefits to Safoora Zargar can be legitimized.

The idea of a fetus’s life and the state’s inherent duty to protect it was developed by the Indian courts in the case of Suchita Srivastava v. Chandigarh Administration, which was based on the viability test of a fetus, i.e., the time period at which a fetus will be able to survive outside of a mother’s womb as was laid down by the US Courts in the case of Roe v. Wade. Currently, with the help of technological advancements and better resources, it has been realized that a fetus is viable outside the womb in around 20-24 weeks after conception. The fetus of Safoora also was 23 weeks as of 23rd June and thus, there was a responsibility of the State to ensure its protection and well-being, and that is not subordinate to any law, policy or decision undertaken by the government.

Also, it is pertinent to understand the legal rights of fetus vis-à-vis laws. It is to be noted that fetuses are considered as minor in a number of personal and succession laws, for instance, Sec. 20 of the Hindu Succession Act which defines the rights of child in womb, or the inclusion of “any other person” under the age of 18 years as the definition of minor as per the Indian Succession Act. Also, the idea of rights being created in favour of non-existent relatives under Sec. 112 of the Indian Succession Act also recognizes indirectly the rights of an unborn child.

Along with that Sec. 312 to 316 IPC also provide punishment for damaging a fetus or threatening its life. Even in the case of Jabbar & Ors. v. State, the Allahabad HC upheld the sentencing of the accused under Sec. 304-B for killing an unborn child. Also, various judgement related to property such as Manikuttan v. Baby (2008) where it was held that a fetus more than 5-month-old is to considered as a child. Lastly, the delay of a death sentence under Sec. 416 Cr.P.C also denotes value to a fetus’s life and his innocence.

Since, in the case of Visakha v. State of Rajasthan, it was held that international principles have to be incorporated and enforced through fundamental rights, we may dwell on them as well. Firstly, the Universal Declaration of Human Rights (UDHR), adopted by UN in 1948 recognizes the rights of all “members of the human family”. Art. 6 and 24 of the International Convention on the Rights of the Child also advocate for the best possible facilities to be provided to the mother and the child and ensuring optimum chances of their survival as well as nourishment.

Rights of the Fetus and their effect on the Detention of the Female Accused

According to the Women & Child Welfare Report related to women in prison (2018), it has been mentioned that despite various guidelines, there is a serious lack of facilities and infrastructure for women and thus, recommends in para 5.6.1 that the National Modern Prison Manual is to be followed and every women prisoner is to be facilitated with temporary release from the prison so that she can deliver in a hospital. Adequate notice of the state of the women is to be notified to the court hearing the bail application so that necessary changes can be made. Suspension of sentence is to be considered as well in cases of casual offenders.

The Apex Court, in the landmark judgement of R.D Upadhyay v. State of Andhra Pradesh talks in length about the facilities being provided to children born in prison and the facilities provided to pregnant and lactating women. The Court, while prescribing rules such as providing pre-natal and post-natal medical assistance to women, creation of a creche for children, facilitating their access to education, better diet for pregnant women and children, separation of such children from hardened criminals, etc also stated that “childbirth in prison should be avoided as far as possible and measures of temporary release/parole including suspended sentence should be made to enable expectant prisoner to have her delivery outside prison.”

It is also seen that in the case of State of Gujarat v. Jadav @ Jatin Bhagvanbhai Prajapati, a women’s sentence was suspended for 10 months on account of her pregnancy during her sentencing and conviction appeal.

In International context, Rule 64 of The UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders talks extensively about exercising the power of discretion and avoiding non-custodial sentences to pregnant women and other women who are raising their young children independently. Also, Recommendation 58 of The WHO and UNODC Report related to health of women in prisons (2009) states that “to protect the health of the mother and of the newborn child pregnancy should be in principle an obstacle to incarceration, both pre-trial and post-conviction, and pregnant women should not be imprisoned except for absolutely compelling reasons”.

Conclusion

Detailed research upon various nuances related to the rights guaranteed to an unborn child, the concessions that can and should be granted to pregnant undertrials, accused and convicts alike leads us to various legal material that aids and abets the case for the bail of Mrs Safoora Zargar. Not only her, but every pregnant woman in prison should be granted bail so that the health of her unborn child is not affected.

The Justice System in the country, focuses on rehabilitation and does not engage in doling out punishments that can be extremely harmful to children because the justice system does not stand to gain anything by imprisoning young children along with their mothers. Thus, a legal system which stands on the thought-process of “it is better 100 guilty Persons should escape than that one innocent Person should suffer”, such an unjust sentence to these children is an abhorrent miscarriage of justice.


About the Author: Utkarsh [2017-22] is pursuing B.B.A.LL.B from Symbiosis Law School, Noida.


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