PRISONERS' RIGHTS IN INDIA

However, a recent order of the Punjab and Haryana High Court has stirred me to believe that somewhere the judiciary too is changing its views.

The Punjab and Haryana High Court while dealing with the plea for conjugal rights by a couple in prison has asked the Punjab government to clarify whether prisoners can have the right to use artificial insemination? The husband and wife both convicted of kidnapping and murder (the husband having being granted death sentence and the wife ordered life imprisonment) have demanded conjugal rights so that they can give their family an heir.

The basic contention here lies that till the petitioners were alive and the husband not executed in line with the court’s orders, they had a right to life, which included the right to propagate species and sex life was part of this right.

Interesting concept this, especially in light of the gambit of change which the ‘traditional’ Indian judiciary is undergoing and when decided is sure to have wide ramifications. But it is surely going to be a long way before the society is open to hang a ‘do not disturb’ sign outside prison cells.

Pick up any religious scripture and you shall see that one of the basic rights assured therein is conjugal rights granted to couples tied in holy matrimony. Then what gives the Government of a land to deny this very right to people behind bars who have flogged laws and done acts which are no way connected to their progeny or marital life?

Quite some Islamic nations allow conjugal rights of prisoners like in Pakistan and Middle East. Punishment in Islam is confined to the person who committed the crime; it does not extend to other innocent persons like the wife who have not committed the crime.

Not only Islam, many Western countries too have included the concept of conjugal visits in their own legislative sanctions. In Brazil, male prisoners are eligible to be granted conjugal visits for both heterosexual and homosexual relationships, while women’s conjugal visits are tightly regulated, if granted at all. Since July 2007, the prison system in Mexico City has begun to allow gay prisoners to have conjugal visits from their partners, on the basis of a 2003 law which bans discrimination based on sexual orientation. France and Canada allow prisoners who have earned the right to a conjugal visit to stay in decorated home-like apartments during extended visits.

Also, even though like England, Scotland and Ireland do not allow conjugal visits, home visits, with a greater emphasis on building other links with the outside world to which the prisoner will be returned are allowed.

In this part of the world, eyebrows were first raised on this issue when in 2008, Nihita Biswas the wife of Charles Sobraj, had filed a petition seeking conjugal rights in Nepal. However, though the same was seen as a publicity gimmick by the teenaged Nihita and her lawyer, mom, it had somewhere raised questions about the lack of adequate provisions regarding conjugal rights of prisoners.

Thereby turning the eyes on India, where no such provisions exist.

In January 2010, in the backdrop of the rise in number of HIV positive prisoners, the Bombay High Court had asked the Maharashtra government to examine the possibility of allowing jail inmates to have sex with their wives in privacy. The Court had for the first time noted the aspect of physical needs of the prisoners and raised concerns of how the government is spending crores of rupees to curb the AIDS menace in jails, when Governments across the world have sought for other measures.

It has also cited the case of Pakistan where an Islamic court has ruled that prisoners in jails across the country must have greater conjugal rights and visits from spouses. The conclusion therein to arose from the study that conjugal rights was behind rising levels of homosexual sex and drug addiction in jails. The ruling also asserted that there was a need to construct facilities so that families can meet with the necessary seclusion.

The recent Punjab and Haryana ruling however has gone a step further to touch upon the question of conjugal rights and progeny when both the husband and the wife are accused. It is to be remembered that across all jurisdictions of the world though conjugal rights of prisoners have been accepted the same are also guided by riders. In case of crimes where visits cannot be allowed or special circumstances where the spouses cannot be asked to meet artificial insemination has been allowed to handle the issue of progeny.

In 2004 a California court upheld the right of the prisoner to mail his sperm sample to his wife, when his plea for conjugal visit was not allowed by the Court at a previous instance. The Court upheld what it termed as the Constitutional right to procreate from prison via FedEx, and also noted that such a right is needed in view of there being certain downsides to being confined in prison, and that interference with a normal family life is one of them.

True that. Even the Constitution of India under Article 21 does not only envisage protecting of oneself while talking about Right to Life. The gambit of life has been extended to cover the concepts of getting progeny, preservation of cell and propagation of species, the two most
essential parts of right to life.

The Supreme Court in its plethora of landmark judgments has held that the right to procreate is an undeniable human right. Similarly the tenets of marriage upheld by the legislatures at various steps have hinted as to how conjugal rights cannot be denied to either of the spouse if the same is not backed by adequate reason.

And merely because a spouse is convicted is not a reason enough now it seems, especially in the wake of numerous countries allowing conjugal visits and also artificial insemination when the visits are not possible.

However, such a right is to come with riders of mutual consent and also exclusion in case of special cases where law does not grant the right to procreate (HIV positive cases), but culling out negative covenants seems a thought too forward when the affirmative covenants are not in place.

Advancement in judiciary is perhaps the fore runner to bring about advancement in society, one of my favourite professors in law school said that once. I just hope the Indian judiciary has woken up to this and does not hit the snooze button.