The Arrest Of Safoora Zargar- Does Law Allow The Arrest Of A Pregnant Woman?

Recently, student activist Safoora Zargar –was arrested for supposedly aiding riots in Delhi against the Citizenship Amendment Act (CAA) – and then granted bail on ‘humanitarian grounds.’ It is noteworthy that she was pregnant at the time of her arrest. Her arrest raised many questions, the most pertinent one being- ‘Does the law allow the arrest of a pregnant woman?’ In this article, we explain the law about arrest of pregnant women and how Safoora finally obtained bail.

Safoora’s background:

Safoora Zargar is a student at the Jamia Milia University in Delhi. She is also an active member of the Jamia Coordination Committee (JCC), a student organization in her university that has been peacefully protesting against the CAA. The CAA is mainly being criticized for discriminating against Muslims.

Arrested when three months pregnant:

Safoora was arrested in April for allegedly blocking a road and causing disturbance with her ‘inflammatory speech’ against the CAA. Safoora was already three months pregnant at the time of her arrest, and had certain health issues that need proper medical attention. Furthermore, she was placed in Tihar jail, which is already struggling to reduce congestion in the midst of the coronavirus pandemic. Hence, her lawyers argued that she should be given bail on humanitarian grounds.

Can a pregnant woman be arrested and jailed?

Yes, a pregnant woman can be arrested in accordance with law. However, the law provides certain safeguards to pregnant women to protect their health as well as the well-being of the incumbent child.

Section 437 of the Code of Criminal Procedure (CrPC) requires courts to grant bail to a person if they are:

• (a) Suffering from any serious ailment, or
• (b) A woman, or
• (c) Under the age of 16.

The National Prison Manual mandates a temporary release of pregnant women in order for childbirth to be outside the prison. There are also several judgements (both in the Supreme Court and High Courts that stress upon the importance of avoiding childbirth in prison in order to provide the child with a healthy environment and reduce the physical and mental stress of the mother.

Does law require Safoora Zargar to be released on bail?

Safoora Zargar is not only a woman, but was also pregnant and suffering from pregnancy related health issues when she was arrested. Therefore, she would qualify under law (more specifically, Section 437 of CrPC) for grant of bail. However, the Delhi High Court denied her bail on multiple occasions.

In India, courts are generally required to grant bail unless they have a strong reason to believe that the accused is guilty, or that the accused may not cooperate with investigations. Moreover, when a woman is pregnant, the courts should be all the more be willing to grant bail. Despite this, the Delhi High Court denied Safoora’s requests for bail multiple times. The court cited the reasons that they believed she was most likely guilty (of ‘causing disturbance with her speech’), and that she was receiving adequate medical assistance in jail.

Safoora’s bail and what it means for pregnant women:

Ultimately Safoora was temporarily released on bail on ‘humanitarian grounds.’ This means that she was given bail considering a combination of factors like - her pregnancy, prior health conditions and the Covid-19 pandemic. The Delhi High Court, however, stated that she had been given bail only because of her special condition, and such a claim of pregnancy cannot be made by others seeking bail in the future.

Through this judgment, the Delhi High Court made it abundantly clear that ‘pregnancy’ is not a good enough reason to grant bail to a woman. Whether or not this judgment will set a precedent (i.e. will be followed by other courts across India) is yet to be seen, but what is clear is that the court was not willing to take a softer approach towards pregnant women. Of course, this case is also political in nature, and the Delhi High Court’s remarks and denial of bail could stem from political pressure more than their stern approach towards a pregnant woman. We just hope that this was a one-off case. We definitely need to protect the women of our country from denial of bail, and more so if they are pregnant. The law protects them on paper, it now needs to translate into reality!