Recently, the Delhi High Court opined that a convict does not become a lesser citizen only due to their incarceration and that their fundamental right to procreate under Article 21 is not lost for that reason alone.
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THE right to procreation is a vital aspect of human existence that goes beyond desire and has significant implications for the continuity of familial bonds and the preservation of one's legacy.
Such rights are taken for granted when one is a free citizen. Individuals make different choices at different times regarding different rights. Not every moment is feasible and opportune to exercise certain rights, especially when you are incarcerated.
The question that thus arises is whether prisoners have the fundamental right to procreate. If yes, when and under what circumstances?
Recently, the Delhi High Court was called upon to answer these questions in Kundan Singh versus The State Government of NCT Delhi. It also had to adjudicate whether, in light of a rejected parole application, the preservation of familial lineage constitutes a compelling ground to warrant intervention.
The petitioner in Kundan Singh was a prisoner, serving his sentence in Tihar jail. He was convicted for offences under Sections 302, 201 and 404 of the Indian Penal Code, 1860.
“Does a prisoner have the fundamental right to procreate? If yes, when and under what circumstances?
He was consequently awarded rigorous imprisonment for life by the trial court and since then, he spent more than 14 years in prison, excluding the period of remission. He had challenged his conviction and sentencing before the Delhi High Court, but in vain.
Later, his wife filed an application before the competent authority for grant of parole on the ground that the couple wanted to protect their lineage and procreate.
The deputy secretary of the home department dismissed the parole application citing the petitioner's or convict's unsatisfactory conduct in the previous two years.
As per sub-Rule (II) of Rule 1210 of the Delhi Prison Rules, 2018, to be eligible for parole, a prisoner who has been awarded a major punishment should uniformly have had good conduct for the last two years from the date of such application.
In the instant case, the petitioner or convict had been awarded three punishments in the previous two years and thus even the jail superintendent recommended against the grant of parole.
Also read: Parole for the purpose of progeny: Why the Rajasthan High Court's recent judgment is flawed
The petitioner-convict was aged about 41 years while his wife was aged about 38 years. They got married in 2020 but had no progeny thus far. They wanted to undergo certain medical tests as they hoped to conceive a child through in-vitro fertilization (IVF).
Hence, a writ petition was filed before the Delhi High Court, seeking, inter alia, writs of certiorari (to quash the Order of the deputy secretary) and mandamus (directing the release of the petitioner on parole).
Justice Swarana Kanta Sharma of the Delhi High Court held that the rights ensconced in Article 21 of the Indian Constitution are not completely obliterated by a person's incarceration. It was held that Article 21 would include the right to have a child and parenthood.
Albeit the Delhi Prison Rules, 2018 do not provide for procreation of children as a ground for grant of parole, they cannot bar a constitutional court from going beyond the black letter of the law.
“[The Delhi High Court] had to adjudicate whether, in light of a rejected parole application, the preservation of familial lineage constitutes a compelling ground to warrant intervention.
It was observed that due to long incarceration, where the age and biological clock of the convict and his marital partner can become barriers for them to conceive, their prayers can be attended to.
Meanwhile, the court clarified that such relief should not be considered for conjugal relation or any other fulfilment. The court recognised its duty of expansive interpretation within the constitutional framework. It refused to cage fundamental rights in a narrow formula and held as under: "In [the] backdrop of this observation, this court has no hesitation to hold that right to life under Article 21 of the Constitution of India will include [the] right of a convict to have a child when he is not blessed with a biological child by being extended the relief of grant of parole for this purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak."
The court also ruled that such a right of a prisoner is refutable if he already has a child or is not in the advanced years of age.
Thus, balancing the State's compelling interest to confine the convict with his right to procreate, the petitioner was granted parole for four weeks with certain conditions.
The Supreme Court has held in Ashfaq versus State of Rajasthan that parole is the term for an early conditional release from jail, which is contingent upon good behaviour and consistent reporting to the authorities for a pre-determined amount of time.
It is also known as a type of conditional pardon that releases the convicted party before the expiration of the term of the sentence. Therefore, parole is awarded for good behaviour as long as the parolee reports to a supervising officer regularly for a certain amount of time.
The parolee may also be temporarily released from prison for some sufficient reasons. Among others, 'if it is desirable to do so for any other sufficient cause', it is a ground for releasing a prisoner on parole.
Thus, the author opines that exercising the right to procreate can be a 'sufficient cause' to grant parole under certain circumstances.
The Punjab and Haryana High Court in Jasvir Singh & Anr. versus State of Punjab & Ors. positively observed that Article 21 of the Constitution effectively covers the right of jail inmates to have a conjugal life and procreate within the jail premises, although this right must be governed by the procedures established by law.
The court further noted that under Article 21, having children and conjugal visits are parts of the right to live with dignity. The court also directed the State to constitute a jail reforms committee to develop plans for creating a conducive atmosphere for conjugal visits, acknowledging that incarceration curtails certain fundamental rights and poses a legal obstacle to exercising the right to procreate.
“It was observed that due to long incarceration, where the age and biological clock of the convict and his marital partner can become barriers for them to conceive, their prayers can be attended to.
A division Bench of the Rajasthan High Court in Nand Lal versus State of Rajasthan observed that having a progeny is essential for preservation of lineage and this has been recognised through legal philosophies, judicial pronouncements and the Indian culture.
This right can be performed by conjugal association and could have the effect of rehabilitating the convict as it also helps to alter the behaviour of the convicted prisoner. It facilitates his peaceful re-entry into the mainstream society after his release.
Pertinently, the court also held that the wife of the prisoner had been deprived of her right to have a progeny, even though she has not committed any offence. Hence, if the right is denied to the convict-prisoner, it would also adversely affect the right to have a progeny of his wife.
In Rajeeta Patel versus State of Bihar, the wife of a convict approached the Patna High Court seeking the parole of her husband as they were not blessed with a child.
The petitioner also needed her husband's assistance, given her infertility treatment and to make arrangements for her livelihood.
The high court was persuaded to hold that the right to have a conjugal visit and artificial insemination is included under Article 21, subject to regulatory procedures.
Medical check-up for infertility was held to be an essential part of the rights under Article 21 and denying the husband of the petitioner to get his wife treated would make such a right a shallow concept.
In Neha versus State of Haryana and Anr., the petitioners, who were husband and wife, sought enforcement of their perceived right to have conjugal relations and procreate within the jail premises for the sake of progeny before the Punjab and Haryana High Court.
The court held that the couple was at liberty to apply for parole in light of Jasvir Singh's case. In Meharaj versus State of Tamil Nadu, a full Bench of the Madras High Court held that it may amount to the denial of the fundamental right under Article 21 if the conjugal relationship of the convict for a specific purpose is denied to them.
The specific or extraordinary purpose may be infertility treatment or the like, but it should not be construed to be a fundamental right for having conjugal relationships as a course.
“The State's compelling interest to confine the convict must be balanced with his right to procreate.
This would draw a clear line of distinction between a law-abider and a violator regarding the rights guaranteed under Article 21. Otherwise, if conjugal relations are granted each time, it would obliterate the difference between a law-abiding citizen and a law-violating prisoner.
It may benefit the reader to mention that in Suchita Srivastava & Anr. versus Chandigarh Administration and X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., the Supreme Court explicitly recognised the concept of reproductive autonomy.
Indian courts have consistently upheld the fundamental rights of prisoners, reasoning that they too are human.
Courts have relinquished the retributive lens and have adopted a reformative approach. The Supreme Court in State of Maharashtra versus Prabhakar Pandurang Sangzgiri upheld the right of a detainee to publish a book written by him.
In Prem Shankar Shukla versus Delhi Administration, handcuffing of undertrials without adequate reasons in writing was held to fall foul of Article 21.
A prisoner has the right to be protected from co-prisoners. In case a prisoner is killed by a co-prisoner, the State may be compelled to compensate the dependents of the deceased.
In Mohd. Arif versus The Registrar, Supreme Court of India, the prisoners' (who are condemned to death) right to an oral hearing in review petitions were recognised.
Additionally, courts have issued appropriate directions to concerned authorities for safeguarding the rights of prisoners against sexual abuse and for their early trials.
“The specific/extraordinary purpose may be infertility treatment or the like, but it should not be construed to be a fundamental right for having conjugal relationships as a course.
The right to speedy trial of undertrials, who have been kept behind bars for a period longer than the maximum sentence that could be imposed on conviction, was upheld in Hussainara Khatoon & Ors. versus State of Bihar.
In Francis Coralie Mullin versus The Administrator, Union Territory of Delhi & Ors., the Supreme Court ruled that a prisoner or detainee is entitled to all fundamental and legal rights, except those that are infeasible because of their confinement, and that this includes the right to live with human dignity. As seen earlier, the right to procreate also falls within the ambit of Article 21.
These rights, however, do not mean that the prisoners have a fundamental right to escape from lawful custody. Hence, as held in D. Bhuvan Mohan Patnaik versus State of Andhra Pradesh & Ors., the presence of armed police guards, livewire mechanism, and others cause no interference with the right to personal liberty of the prisoners.
Article 1 of the Universal Declaration of Human Rights (UDHR) recognises that all human beings are equal in dignity and rights. Article 16 of UDHR states that men and women of full age have the right to marry and found a family.
Also read: Privacy as a Fundamental Right
Article 23 of the International Covenant on Civil And Political Rights (ICCPR), and Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) recognise the right to found a family.
The right to decide freely and responsibly the number and spacing of one's children is guaranteed under Article 16 of the CEDAW, Article 24 of the Convention on the Rights of Child, 1989 (CRC), Article 17 of the ICCPR and Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).
The right to access family planning, information and education is guaranteed by Article 16 of CEDAW, Article 13 of the CRC, Article 19 of the ICCPR, and Article 13 of the ICESCR.
The United Nations Programme of Action at the International Conference on Population and Development provides for the basic right, the best possible level of sexual and reproductive health, as well as the freedom and responsibility for all couples and people to choose the number, spacing, and timing of their children, as well as the information and resources to do so.
Rule 58 of the Nelson Mandela Rules has recognised the prisoners' conjugal visitation rights.
Though the Modern Prison Manual, 2016 generally deals with familial and social obligations, it does not contain procreation and conjugal meets as grounds for parole. Even the Model Prisons Act, 2023 does not specifically recognise the prisoners' right to procreate as a ground for parole.
“Though the Modern Prison Manual, 2016 generally deals with familial and social obligations, it does not contain procreation and conjugal meets as grounds for parole.
On the other hand, the recent decisions, as aforesaid, are considerations within the framework of Article 21 of the Indian Constitution which underscore the significance of safeguarding prisoners' fundamental rights.
As the judicial landscape evolves, the legal discourse must remain attuned to both domestic and international perspectives, ensuring that the right to procreate of prisoners is not unduly curtailed.
Ultimately, the interaction between law, human rights and the criminal justice system encourages continuous contemplation on how society preserves and respects people's dignity, even in the challenging context of incarceration.