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Absolutely no: Calcutta HC on pregnancy tests in prison



Calcutta High Court

dismissed Tuesday a PIL to make pregnancy tests compulsory for all

women prisoners

in Bengal with an unequivocal “absolutely, no”. The HC made it clear that it could not propose “unnecessary intrusions” into someone’s


just because she was an undertrial. “It is like saying lock up women because there are catcalls on the streets,” a division bench of Justices Joymalya Bagchi and Gaurang Kanth said while hearing the PIL relating to problems in the state’s prisons.
Prisoners, too, had the right to dignity, the HC said, stressing twice during the hearing that there should be “no secondary victimisation in the judicial process”.

On Feb 8, the high court’s amicus curiae, Tapas Bhanja, had submitted that women prisoners were getting pregnant while behind bars, citing as many as 196 births. Bhanja had also sought a ban on male employees of state correctional homes from entering women’s spaces.
On Feb 9, Supreme Court had taken cognisance of the allegation. A multi-agency probe – comprising the state prisons department and the state women’s commission – had also found out that 181 women prisoners stay with their children in Bengal’s jails, and that all of them had conceived prior to being jailed or while out on parole.

On Feb 14, an amicus told the Supreme Court that 62 babies were born in Bengal jails over the last four years and that most of the women inmates who gave birth had been pregnant when brought to prison. On Tuesday, the suggestion for mandatory pregnancy tests provoked a strong reaction from the bench. “Listen, a lady is coming as an undertrial. The extent of intrusion in her privacy will only be commensurate with the necessities of her detention,” Justice Bagchi said. “There must be a voluntary agreement to a pregnancy test. We cannot propose unnecessary intrusions in her privacy just because she is a suspect and has been brought as an undertrial.”

The bench said the prison inmates should not be made “objects of excessive surveillance…. We would propose not to go for too excessive restrictions. Let us follow the law proportionally. If less intrusive measures can achieve results, we would love to follow that course.”
When state advocate general Kishore Dutta urged the court to stop comments on pregnancies in prison because that had a rippling effect in society, including the children, the HC said: “This bench is very loath to impose any gag order because we believe in open justice. We also believe that the officers of the court will be responsible not to make comments which will bring down the majesty and dignity of the judiciary. However, having said that, constructive criticism – be it of the state, be it of the judiciary – is always welcome.”

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