This article is written by Dhruti Lunker and Isiri SD.

“No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones”.

–Nelson Mandela

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Abstract

Man is a social animal; he needs a partner to share his joys and sorrows with. The controversy regarding providing conjugal rights to prisoners has been that the spouses of inmates are deprived of their right to lead a happy married life. There is a need for the same vis a vis the right to life guaranteed by the Constitution. Conjugal rights are rights of the prisoners to be able to visit their family and spouse. The society is torn between the boons and the banes of providing such rights to the prisoners. Some justify it to be complementary of right to life, while others point out the difficulties in conferring such a benefit. This debate resurged again before the Punjab and Haryana High Court wherein the Court emphasized on the need to provide for such rights for the rehabilitation of the prisoners. Different international jurisdictions have their own rationale with respect to conjugal rights to prisoners. The European Convention on Human Rights has recognized conjugal rights to be a significant human right. Sweden and France are two of the most liberal countries that have provided for such rights in its entirety; but the same is not the case in the United States where the state laws on punishment are considered more sacred than the institution of marriage. Weighing the pros and cons, it can be perceived that the benefits of such rights overpower the drawbacks and providing for such rights is the need of the hour as upheld by the judiciary in a recent case decided by the Madras High Court. 

Introduction

The Prison is the oldest penal institution known to mankind. The Penal Laws of every country offer to punish individuals for commission of any act classified as a crime in that country. Every human enjoys certain rights by the virtue of his being i.e. Human rights. In India, an extension of these human rights is provided to every citizen in the form of Fundamental Rights. These fundamental rights are provided to all the citizens (certain rights to even non-citizens) including the prisoners. Justice Krishna Aiyer in the case Charles Sobraj v. The Superintendent, Central Jail, Tihar has opined that “Imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen”. Therefore, it is that the prisoners will only be denied rights ancillary to the punishment such as right to movement etc. and are free to enjoy all the other basic rights. In the subject matter of rights of prisoners, the ‘Right to Life and Personal Liberty’ holds a paramount position.

The Judiciary expanding the ambit of ‘life’ in the case of Francis Coralie v the Administrator, Delhi has stated that life is not just the mere animal existence, it includes all the bare necessities of life such as adequate nutrition, clothing, shelter and all that is conducive for a living. In the expanse, there is a question posed to the Judiciary, whether the right to life enjoyed by prisoners includes the right to procreate, conjugal visits and artificial insemination. In G. Bhargava, President M/s. Gareeb v. State of Andhra Pradesh, the Andhra Pradesh High Court denied the provision for any such right to the prisoners on the ground that such a provision was not provided in the AP Prison Rules, 1979 and conferring such a benefit to one prisoner will be unfavourable to the others. However, two years down the line the Punjab and Haryana High Court held that the ‘Right to Procreate’ falls within the purview of right to life and personal liberty enshrined in Article 21 of the Constitution and thereby recognised the ‘right to conjugal visit’ or ‘right to procreation’ as a fragment of the ‘Right to Life’ of Prisoners.

Understanding conjugal rights

Man is a social animal. He requires a family to share his joys and sorrows with. He needs a society to coexist in. He needs a partner who would give him physical and mental support. Though housing, clothing, food are considered as the basic necessities of life, there are certain biological desires of humans that have to be fulfilled. The society in which a man lives gives validation to man having a family. Conjugal rights means the marital rights of a man. Every man who is incarcerated has a right to meet his family and spouse. It is generally known as a family reunion time where the prisoner gets to spend time with his family casually. The concept of conjugal rights to prisoners emphasises on the marital relation between the prisoner and his/her spouse. A marriage is an agreement between a man and woman to live their lives as husband and wife. The institution of marriage requires a married couple to physically and emotionally share each other’s’ life. The idea behind the concept of conjugal rights is to not let anything obstruct or hinder the family life of an inmate. It is an accepted fact that spending time with family and partner helps an inmate to feel normal psychologically. He requires love, care and affection of his family.

Since India follows the reformative theory of penology, prisons being the most accepted and common form of punishments, it is believed that visits by family can help the prisoner reform and rehabilitate. Such visits can be used by the prison officials as a tool to obtain obedience from inmates. Such rights are not very popular in India because there is no legislation governing the same. But, the judiciary has taken the broader path and highlighted the importance of providing decent living conditions to the prisoners. In the cases of Jasvir Singh v State of Punjab and Meharaj v Secretary, State of Madras, it has changed the perspective of the society that the prisoners are wild beasts who do not deserve the basic amenities necessary for living a life with dignity. The Courts have reiterated the fact time and again that just because a man is punished for a wrong that he has done, it does not mean that he ceases to be a human being.

Conjugal Rights of prisoners: An evolution through cases 

In the case of Francis Coralie Mulin vs. the Administrator, Delhi, the Court held that prisoners are entitled to the enjoyment of all fundamental rights that are available to any free person, apart from those barred by the reason of incarceration. Whether the conjugal rights to prisoners is a right available to prisoners was an issue placed before the Court. The answer to this question has evolved through the years through a few cases.

G. Bhargava, president m/s. Gareeb guide (voluntary organisation) vs. State of Andhra Pradesh

In this case, there was a Public Interest litigation (PIL) filed by the petitioner before the Andhra Pradesh High Court seeking immediate action to permit conjugal visits to the spouses of prisoner in the jails throughout the State. However, the Court responded to the PIL in the negative holding that if such conjugal rights are allowed to certain prisoners, then it would be unfavourable to the other prisoners, to whom such right is not extended. The Court further stated that the issue relating to conferring conjugal rights is a policy decision within the domain of the State and not within the power of the Court to do so.

Jasvir Singh and anr v. State of Punjab and others

In this case, the petitioners were a couple, guilty of kidnapping and murdering a sixteen year old for ransom. The couple was awarded a death sentence by the Trial Court and their further appeal to the Supreme Court was dismissed. However, the Apex Court commuted the sentence of the wife to imprisonment for life. The petitioners prayed for the enforcement of their conjugal rights and their right to procreate during incarceration. They also petitioned that the Court should direct the jail authorities to permit to them to stay together for the sake of procreation. They also requested for artificial insemination as an alternative.

The principal issue involved in this case is whether ‘right to life’ available to prisoners includes ‘right to conjugal visits’ and ‘right to procreate’. The Punjab and Haryana High Court held that the right to procreation is available to prisoners as well. This right can be traced to fall under the ambit of Article 21 of the Constitution read with the UDHR. The Court stated that only the rights ancillary to incarceration will not be available to prisoners and since there is no nexus between conjugal rights and incarceration, the prisoners are entitled to the enjoyment of such rights, subject to reasonable restrictions. The Court finally established that Article 21 that is available to prisoners includes their right to conjugal visits or artificial insemination (alternative). Also the Court held that the exercise of these rights shall be in consonance with the procedure laid down by the State.

Meharaj v State of Tamil Nadu and others

In this case, the Petitioner (wife of the convict) has filed a petition before the Madras High Court seeking grant of leave for her husband who is a life convict. The leave is sought for the purpose of assisting the petitioner in the infertility treatment to be undergone by her. The Court in this case, emphasised on the significance of family bonds and relation with spouse in the reformation of a prisoner and opined that, just because a person is a prisoner he cannot be deprived of his right to dignity in a society. The Court stated that conjugal rights are a very important aspect of a man’s right to life. The court upheld that the right to conjugal visit is within the ambit of the right to life of prisoners and therefore prisoners are entitled to the same.

Conjugal Rights: Assessment of pros and cons

In the movie “Sanju”, there is a scene that depicts the living conditions of prisoners at the Yerwada Jail. That scene shows how untidy the loo in the jail was. The movie just highlighted the fact that provision of basic living conditions to the inmates is not the priority of prison authorities. Right to life includes right to lead a dignified life.A little effort to improve the living conditions is required and providing for marital rights to the prisoners might be one step towards it. Since ages, it is believed that the love and affection of family reforms the character of a person. It helps him rehabilitate himself to coexist in the society once he is out of the prison. This helps in mitigating the violent behaviour of the prisoners in the jails. Also, it can be contested that why should the spouses of inmates lead a non- conjugal life due to a wrongful act committed by the prisoner. Another advantage of permitting conjugal rights to prisoners is that it helps in reducing non-consensual homosexual intercourse. Being confined in a room for days incites the prisoner to engage in homosexual activities, out of frustration. The advocates of conjugal rights to prisoners use this a weapon to state that this results in homosexual rape which has increased to a great extent especially in the prisons.

In a study published by the American Journal of Criminal Justice, it was observed that the four states in America that provided for conjugal rights had lower rates of sexual assault among the inmates in comparison to the other states that did not permit conjugal visitation. The issue of engagement in homosexual activities by juveniles had come into light only in the case of Sunil Batra v Delhi Administration. In the case of G. Bhargava v Secretary, State of Andhra Pradesh, a petition was filed to seek for marital rights to the inmates on the ground that it might help in the reduction of homosexual activities which would in turn help in reducing HIV-AIDS. Recently, this issue has been in limelight and the courts have agreed that allowing for such a right would help the inmates relieve sexual frustration and reduce non-consensual homosexual activities. There are other factors like incentive for quick rehabilitation and right to procreation that stand strong and promote the need for provision of conjugal rights to prisoners.

The judiciary is slowly stepping into the forum and helping in improving the conditions of the prisoners. It is upholding the principles of Article 21 at every step of its job. It is argued that, though allowing for conjugal rights upholds the right to live with dignity of the prisoners, it is difficult to implement such rights in India where the prisons are always overcrowded and there are no basic amenities available to the inmates. In the case of Meharaj v State of Tamil Nadu and ors, the probation officer rejected the plea of the petitioner because the rule book governing the suspension of sentences did not explicitly mention about the marital rights of the inmates. An argument against the conjugal rights is that if such rights are permitted, then the cells might turn into prostitution centres. Also, sexual intercourse is a private act between married couples and engaging in sexual activities in the cells would be a breach of their privacy.

In Jasvir Singh’s case, the court ordered for a Reforms Committee to be formed so as to recommend the implementation of such rights and lay down a reasonable classification as to who should be granted the conjugal rights. The prison authorities are concerned about the safety of the inmates because there are high chances of escape attempts by the inmates. As a solution to this problem, the security supervising the inmates during conjugal visitation could be tightened as seen in Meharaj’s case. Thus, some justify it to be a part of right to life under Article 21, while the others evade it on the grounds of it being immoral and impractical. It is the job of the legislature to explicitly lay down the rights available to the prisoners and the judiciary has to ensure that the rights are properly implemented to deliver proper justice to the situation.

Conjugal Rights in other jurisdictions

(A) United States

There are only 4 states in the U.S. that permit conjugal rights to prisoners- California, Connecticut, New York, and Washington. The rights are not formally established by law but the practice has been accepted by all the prisons. The inmates get to meet their spouses twice in every week. Most of the times, a lot of inmates are placed in the same room and the visitation happens in overcrowded conditions. In New York, extended family visits are allowed only to those inmates who have been in their best behaviour and whose period of sentence is only one year. For conjugal visitations, an apartment is given for the couple to stay and spend time in. The rationale behind providing for conjugal rights to prisoners is that it helps them in rehabilitation and relieving stress and frustration. Here, the laws on punishment are valued more than the institution of marriage. 

(B) Canada

The concept of conjugal visitation started in the year 1980 as a pilot project and since then it has been adopted by the country as a regular practice since it has played a significant role in rehabilitating the prisoners. The results of conferring such a right has been positive and it is important to make this process successful as it is a welfare measure for the prisoners.

(C) Europe

In Europe, the conjugal rights are dependent on the European Convention on Human Rights that assures right to marriage and privacy. Most of the European countries consider the right to marry and have children to be a scared obligation. The conjugal rights in these countries are more liberal and promising. For instance, France allows for conjugal visitation twice every week and New Zealand allows spouses to visit their inmates for an hour every week. Sweden is considered to be the most liberal country providing for visitation rights to spouses on one Sunday every month without any supervision. It also allows for home leaves and private visits.

India has taken a lead from the laws of such countries where the rights of citizens are given the highest priority. Since India is an active signatory to most of the human rights treaties, it is desired that it will soon provide for such rights to the prisoners and thus uphold the basic constitutional principles.

Conclusion

In India, we have adopted a penal system, reformatory in nature wherein the system incorporates practices that are conducive to reformation and recognizes rights which purport a decent standard of living to the prisoners. Psychologists say that contact with family and spouse is an important aspect of a man’s life and helps him feel stress-relieved and happy. The institution of family is deeply rooted in the Indian sentiment. One of the most fundamental arguments raised by the exponents in support is that through providing for conjugal rights, the family ties do not fade away and remain strong. To uphold a fair system of incarceration, it is important that conjugal rights to prisoners are provided because it helps in reformation and rehabilitation of prisoners which is in tandem with the nature of India’s penal code.

The Judiciary has played an exemplary role in recognizing the conjugal rights of prisoners. The landmark judgment of Jasvir Singh v State of Punjab has introduced a new dimension of ‘right to procreate’ and ‘right to conjugal visits’ to the right to life. The judgment has taken a step forward towards recognizing the rights of prisoners. Taking a lead from the rights of prisoners in the international jurisdictions, the Indian Courts are gradually moving towards transforming the living conditions of the prisoners. 

The current legal framework governing the prisoners does not have any provision for conferring conjugal rights to prisoner and thus such a drawback needs to be immediately addressed. Assessing the boons and banes of vesting conjugal rights to prisoners, we conclude that such rights are a desideratum.

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