A state reveals its moral character not only in how it punishes the guilty but in how it protects the innocent caught in the machinery of punishment. That test was recently failed.
The image should have unsettled the conscience of the Republic long before it went viral. A 46-day old infant, still dependent on breastmilk, entered prison with her injured mother under judicial order. Not as an accused or witness, but as a child carried into custody because the legal process failed, however briefly, to distinguish between allegation and humanity.
That fact alone should have halted the process.
In the Tejgaon incident, Shilpi Begum, a ward level leader of Dhaka Metropolitan North Awami Jubo Mohila League, was denied bail and sent to Kashimpur Women’s Central Jail with her one and a half month old daughter Kaifa Islam Simran in a case under the Explosives Act linked to the aftermath of the July Movement. She appeared before court as a post caesarean mother, physically unrecovered, with a broken left arm, wearing a surgical belt and breastfeeding while her counsel pleaded humanitarian grounds. The police opposed bail and the court refused. She spent the night in prison with her newborn.
Only later did the Chief Metropolitan Magistrate grant bail. If bail was legally possible on reconsideration, it was legally possible earlier. The obstacle, then, was not law but the failure to exercise judicial discretion. Discretion is the living conscience of law. Section 497(1) of the Code of Criminal Procedure, 1898 permits bail, even in non-bailable offences, for women, the sick and the infirm. The accused plainly fell within that protection. Section 382, which stays the execution of a pregnant woman’s sentence, reflects a broader principle that the welfare of a child may temper punishment. That principle was available, yet ignored.
So, the question remains. What was the child’s offence? A 46-day old infant cannot be collateral to prosecution. Criminal liability is individual. It does not pass through kinship or attach to dependents. To force an infant into prison because the state has accused her mother offends the first principle of criminal jurisprudence.
This is not sentiment. It is law. Article 31 of the Constitution guarantees protection in accordance with law. Article 32 protects personal liberty. Article 35 rejects cruel treatment. The Children Act, 2013 recognises a child dependent on an imprisoned mother as a deprived child entitled to protection. International obligations are equally clear. Bangladesh is bound by the UN Convention on the Rights of the Child. Article 3 requires the best interests of the child to be a primary consideration. Article 37 makes detention a last resort. CEDAW imposes duties to protect women’s dignity and bodily security.
Comparative jurisprudence says the same. In Nusrat vs The State [1996 SCMR 973], the court held that even if a mother is guilty, her breastfed child remains innocent. Our own High Court in 2023, expressed concern over 304 children living in 68 prisons and acknowledged prison is not a place for child development. Yet a newborn still spent a night in custody. This episode exposes a structural malaise marked by mechanical remand culture, punitive reflexes in policing, uneven use of discretion and a willingness to subordinate rights to process.
The court had alternatives. Conditional bail, house arrest, reporting obligations, surrender of passport, probationary supervision under the Offenders’ Probation Ordinance, 1960, even temporary medical release. None was pursued. That omission converted procedure into punishment. Equally disturbing was the inhuman petition advanced by police. What institutional culture permits opposition to bail for a mother recovering from surgery, carrying a fractured arm and nursing a 46-day old infant. Law enforcement must be tempered by proportionality. Without that, legality becomes a costume for injustice.
These concerns deepen in a political climate where criminal law is often accused of instrumental use. If explosives and attempted murder charges are deployed as political templates, every denial of bail invites scrutiny. Law must never become a partisan instrument. The incident in Ukhia, where a six-year old reportedly ended up in jail after family members were detained, reinforces the same dangerous logic. A child cannot plausibly aid the escape of a handcuffed adult. Claims that the child accompanied the mother voluntarily do not erase coercion when the state creates no realistic alternative. Again the question returns. What was the child’s offence.
Process first, rights later is not rule of law. It is procedural domination.
There is also a humanitarian dimension. Prison carries disease risk, psychological stress and developmental harm. During outbreaks, including measles concerns, the risk grows graver. A newborn needs care, not iron gates. More troubling still, the mother and child secured bail only after public outrage and viral images stirred attention. The system corrected itself through external embarrassment, not internal safeguards.
Justice should not depend on a photograph to awaken. Bail ended the immediate harm. It did not answer deeper questions about the first order, the prosecutorial objection or institutional conduct that brought shame upon the nation. Accountability may begin with judicial reflection, administrative review, clearer protocols for nursing mothers and infants, and enforceable safeguards against incarcerating newborns except in extraordinary circumstances. This case should compel reform. A humane legal order does not imprison infants by default and justify it later. Prisons may hold accused persons. They must not hold childhood.
A 46-day old child bears no blame for another’s alleged offence. Yet she has carried the burden of institutional failure. And perhaps that is why humanity, in this episode, does not scream. It cries in silence. Because sometimes the loudest indictment is heard in the quiet question an infant can never ask: Why was I taken to jail.
The writer is a journalist with The Daily Observer and a practicing lawyer
