Megha Gohel Alkesh
INTRODUCTION
‘Imprisonment does not mean farewell to fundamental rights as laid down under Part-III of the Constitution’
Justice Krishna Iyer’s perspective in the landmark case of Sunil Batra v Delhi Administration underscores the evolving judicial approach favouring conjugal rights for prisoners. These rights, assumed to be inherent privileges for free citizens, involve the ability to nurture a relationship privately and indulge in procreation. This dynamic is extremely different for couples divided by prison bars and lengthy life sentences, where ‘conjugal rights’ are limited only to the basic marital rights of meeting their families in prison. India is seeing a rising trend where these rights are being granted by courts under Article 21 of the Constitution (‘Art 21), in the efforts to address a legislative gap. However, this is not a new discussion, and can be traced back to Justice Majumdar’s solution of granting conjugal rights to prisoners to prevent AIDS in prison in 2010. This right was discussed in the recent judgement of Jasvir Singh and Ors v. State of Punjab and Ors, (‘Jasvir Singh Case’) which recognized a prisoners’ right to procreate through methods like artificial insemination, even without specific legal provisions. While acknowledging the court’s noble intent in granting conjugal rights, the author identifies several lacunae in both legal provisions and logistical considerations surrounding these rights, starting with the court’s rationale for enshrining the ‘right to procreate’ and ‘conjugal rights for prisoners’ under Art. 21. The socio-economic impact on the prisoner’s spouse and potential child is a critical concern which the author aims to highlight and provide a simplified mechanism for the same.
THE PARADOX OF PRIVACY IN PRISONS
A convict’s fundamental rights, including their right to life under Art.21, have been repeatedly affirmed in multiple cases such as D. Bhuvan Mohan Patnaik & Ors v. State of Andhra Pradesh & Ors. and State of Andhra Pradesh v. Chala RamKkrishna Reddy, with the reasonable bar of lack of free movement, or engaging in a profession of choice in a prison. Building on Art. 21, Sunil Batra v. Delhi Administration (‘Sunil Batra case’) allowed for more liberal family visits and addressed issues like underage sexual abuse, emphasizing the humanitarian aspect of prisoners’ rights. In 2017, the landmark ruling in Justice K.S. Puttaswamy v. Union of India enshrined and elevated the right to privacy under Art. 21, to a fundamental right while emphasizing that privacy covers personal intimacies, family life, marriage, procreation, the home, and sexual orientation. The freedom to procreate, choose one’s family, and maintain the sanctity of marriage are vital to individual dignity, regardless of their socio-economic status. Conjugal rights, encompassing marital intimacy and the right to procreate, are thus integral to the right to privacy under Art. 21. However, there arises a crucial question: Does a prisoner retain the right to privacy? If the court cannot ensure a prisoner’s right to privacy, can it legitimately grant conjugal rights?
While granting the right to privacy in 2017, the court overlooked its implications for prisoners, contradicting its 2015 judgment in DK Basu v. Union of India, wherein, it mandated CCTV cameras inside prison cells, including those of female prisoners to curb inmate violence. This panopticon approach, was furthered in Shafhi Mohammad v. State of Himachal Pradesh, demanding oversight reports on CCTV effectiveness in prisons. In such overcrowded conditions, having cameras in intimate areas, like rooms where inmates meet their spouses, severely undermines the prisoners’ right to privacy.
LACK OF INFRASRUCTURE SUPPORTING CONJUGAL VISITATIONS FOR PRISONERS
Even if the state were to grant conjugal rights to prisoners, practical issues persist due to the current prison infrastructure and the complexities of upgrading it. They do not support private cells for inmates to spend time with their spouses and building such facilities would be prohibitively expensive and difficult to ensure equal access for all prisoners. Although the court has suggested a ‘Jails Reform Committee’ to explore conjugal visits by ‘reasonable classification’, the financial burden on the overstretched state exchequer is significant. No Indian statute or rules currently provide for conjugal rights or visits in jails, highlighting the gap between ideal and reality.
Balancing prisoner safety and continuous supervision often means that privacy rights, including conjugal rights, are compromised. However, an easier, least restrictive solution, exists that imposes minimal burden on the state: upholding Justice Krishna Iyer’s principle of ‘Bail, not Jail’ more strictly by granting parole on a case-by-case basis, depending on factors such as behaviour and urgency to produce a child. This approach was recently supported by the Kerala High Court in Abhaya v. Venu v. State of Kerala & Ors., where parole was granted for a prisoner to assist his wife with an IVF procedure, echoing a similar decision by the Rajasthan High Court in Nand Lal Through His Wife Rekha v. State of Rajasthan. State legislation should explicitly include provisions for granting parole to uphold conjugal rights, allowing prisoners to meet their familial obligations with minimal state expense. Enhanced supervision systems and judicious granting of parole can effectively provide prisoners the right to procreate without significant financial implications.
IMPACT ON THE RIGHT TO LIFE OF THE SPOUSE OF THE SPOUSE AND FUTURE CHILD
While the inherent right of a married couple is to enjoy all the privileges of an interpersonal relationship, extending the same to prisoner’s is not the case. The difference is clear- conjugal rights to a prisoner can only extend to visits by their spouse in jail. The present mulaqat system, is the only way for the prisoner for meeting their family. It is a short meeting, usually lasting no more than twenty minutes and is considered impersonal and inhumane. The room where mulaquat occurs is common for all prisoners, almost resembling a fish market in most prisons and is a barely audible and rushed affair due to the overcrowded nature of prisons. These visits by women or the prisoner’s children can become not only difficult, but also uncomfortable and embarrassing, with the grant of conjugal rights being opposed by the prison guards themselves.
Keeping these considerations in mind, we must revisit Justice Surya Kant’s judgement in the Jasvir Singh case, wherein, the court believed that there is no conflict between procreation and incarceration. The court put the onus on the State through the means of a ‘Jails Reform Committee’ to uphold the fundamental right to conjugal visits or ‘artificial insemination’. However, an obvious limitation and future hazard of the same cannot be ignored.
One of the principal arguments put before the court centered around the right to life and conjugal liberty of the spouse, and the right of the spouse to enjoy conjugal rights. However, the court does not go into depth about the rights of the future child born to this couple.
THE JASVIR SINGH CASE- CONSIDERATIONS ABOUT THE FUTURE?
Taking the facts of this case, both the wife and husband were in prison, with the wife serving a life imprisonment while the husband was served with a death sentence. The court granted them their demands of living together on jail premises and having a progeny, however, it did not touch upon the living situation of this child. A prison cannot be a place to raise a newborn child. Art. 21, guarantees the right to life of the child right from the pre-natal days, continuing all along till the age of attaining majority.
The court, in 2023, in the case of B Saravanan v. DIG Tirunelveli, has ruled that the role of both parents, during the pre-natal as well as post-natal days is extremely important from the perspective of the child’s right to survive. The court further ruled that it is the duty of the welfare state to provide the child with proper healthcare, hygiene and sanitation in the post-natal care days. Ensuring the same, in the overcrowded nature of our prison systems, especially for a new-born, is neither feasible nor comfortable for the child. Procreative autonomy in a prison setting cannot be discussed without answering the considerations around familial and social issues, the social stigma involved, privacy of the child, and the right of the child to grow up in a safe environment.
SOCIETAL STIGMAS - AN ADDED BURDEN ON THE SPOUSE AND CHILD
In the next case scenario, where the child grows up with a single parent, while the spouse incarcerated with a life sentence or facing death penalty, the repercussions extend beyond mere familial dynamics. Social exclusion as well as financial struggles overlook the family,[1] especially if the imprisoned parent was the primary breadwinner. The non-incarcerated spouse grapples with societal stigmas and mental burdens associated with having a partner behind bars. Further, multiple social stigmas affect the spouse who may not be in prison but suffers the same mental and social stigmas from their family or society in general as the prisoner. This is a consideration which only becomes more complex when viewed from the lens of the child’s development. The absence of a parent, whether due to imprisonment or societal ostracization, can adversely impact the child’s growth. The child is confronted with the harsh reality of growing up without one parent, and in cases of a death sentence, potentially facing the permanent loss of the other.
In contemporary times, as the court discusses the importance of a paternity or parental leave, it is of paramount importance to recognize the basic human right of the child to have both parents present during the birth and early stages of life. This becomes even more true in cases of artificial insemination or In-Vitro Fertilisation (‘IVF’) Treatments, as the complexities and challenges of the pregnancy and delivery are heightened. This new outlook on paternity leave shapes through the court’s cognizance of the demanding and draining effect that a pregnancy has on the mother, with the father being needed to help the mother and child in this crucial developmental stage. In cases where one of the parents is incarcerated or absent, the potential repercussions on the growth and development of the child as well as its overall well-being cannot be overlooked completely.
While the scenario of a single-parent upbringing with an incarcerated spouse is far from ideal, the author argues that it is more favourable than raising a child within the confines of a prison until the release of one of the spouses. Balancing the challenges and societal stigmas involved, the author suggests that the growth of the child away from the harsh environment of the prison can offer a better chance at a more stable and supportive upbringing.
INTELLIGLE DIFFERENTIA FOR A FUNDAMENTAL RIGHT - A CRITIQUE
Despite the court affirming the fundamental right of prisoners to procreation and conjugal visits, divergent judicial opinions have surfaced. In Meharaj v. State, the Madras High Court acknowledged these rights but applied a different enforcement standard for inmates, allowing them only in extraordinary circumstances like infertility treatments, rather than as inherent rights. Similarly, in Jasvir Singh, the court stated that procreation rights would be implemented gradually, with a reasonable classification based on prisoners’ behaviour. While this incentivizes reform among convicts, it excludes those convicted of serious crimes like rape or child abuse. While intended to encourage rehabilitation, this method of categorization based on crime severity raises concerns about oversimplification, potentially ignoring the nuances of individual cases. This differentiation contradicts the court’s broader goal of ensuring prisoners’ readiness to reintegrate into society and reform.
LOOKING AT THE BIGGER PICTURE- 'If' CONJUGAL RIGHTS ARE TO BE GRANTED
The author contends that crimes are nuanced, with many shades of grey, and a person’s identity should not be solely defined by their offense. Convicts, even those serving life sentences, require mental and emotional stability to regain control over their lives. The current differentiation leaves no room for those convicted of serious crimes but making genuine efforts to reform through good behaviour or community service in prison. If the court’s main goal is to ensure convicts are fit to re-enter society and reform their behaviour, it must consider the broader context, the biological clock of spouses and the importance of familial support. Conjugal rights should be extended to include convicts involved in serious crimes if they demonstrate good behaviour. This should be evaluated on a case-by-case basis, considering the convict’s mental stability, family support, and conduct. If granting conjugal rights to this subset is deemed infeasible, the author suggests exploring artificial insemination as an alternative. This is supported by the court’s previous allowance of artificial insemination in the Jasvir Singh case.
This approach aligns with the court’s goal of societal reform and the reintegration of prisoners into society. Rejuvenation is a long process, with the life after being released from prison being extremely hard on the prisoner as well. By carefully considering the mental, emotional, and financial aspects of the convict’s life, the court can fulfil its objective of facilitating the rejuvenation process and easing the challenges faced by the released prisoner in adapting to life outside prison walls.
CONCLUSION
As pointed out by the author, despite the court’s initial approval for allowing conjugal rights for prisoners, there remain multiple hurdles through the same, starting first and foremost with the law itself. The prospect of granting the right to procreate and the right to privacy within the confines of prisons appears ambitious and unattainable. Addressing this issue requires urgent legislative intervention, particularly if the court deems that such rights could positively impact the behaviour and mental well-being of inmates. Overarching judgements, speaking of the benefits of conjugal rights, but at the same time, not ensuring that the requisite infrastructure and mechanism exist, are of little to no help in the implementation of this right.
However, any legislative endeavour must carefully balance the interests of the prisoner’s spouse and the potential future child. The familial and social context cannot be ignored, prompting the court to assess whether adequate support exists within the family to assist the spouse in raising the child and providing for the single parent until the prisoner’s release. Further, establishing a mechanism for the prisoner to spend meaningful time with their child becomes imperative, recognizing the universal right of every child to grow up with the love and support of both parents. Apart from legal and interpersonal issues, the logistical constraint of jails in India must be taken into account as they make it difficult to grant conjugal rights to an array of offenders. The state cannot ensure the grant of conjugal rights to prisoners if such complexities act as functional roadblocks to execution. Innovative solutions must be introduced, along with these rights, to enable prisoners to spend quality time with their spouse and children, at a lower cost to state.
In situations and states where these complexities cannot be resolved without heavy state expenditure, the option of granting parole to convicts based on their overall mental and emotional stability, along with societal and behavioural considerations must be carved out through amendments in the existing laws governing parole. The state must traverse these challenges in order to grant and ensure conjugal rights to prisoners for their justice and well-being.
The author is a third year student at the West Bengal National University of Juridical Sciences (WBNUJS)
[1] Singh, A., & Dasgupta, A, supra note 3, p13.
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