PRISONS ARE SIGHTS OF PUNISHMENT AND DETERRENCE. A prisoner does not enjoy every fundamental right. The prison industrial complex inherently curtails certain rights. But what about particular basic rights necessary for human existence?
Conjugal visitations are private, unsupervised meetings between the prisoner and his spouse within the jail premises, catching moments of sexual intimacy and emotional exchange involved in a marital tie. An old debate arises in this context – should the prisoner be allowed state-sponsored intimacy?
In 1982, scholar A. Goetting observed that conjugal association schemes globally are sporadic and patternless. Countries like Spain, Sweden, Norway, and Denmark had liberal policies, whereas the Netherlands, Switzerland, West Germany, and Yugoslavia preferred restrictions.
The United Kingdom and the United States federal prisons strictly prohibit conjugal visitations. Interestingly, some American states like California, Washington, and New York permit conjugal visitations, while others like Mississippi and New Mexico terminated their long-running scheme in 2014.
In the Asian landscape, Japan forbids conjugal visitations. On the other hand, the Philippines, along with other Islamic countries like Pakistan, Saudi Arabia, and Oman, recognise such visitations as a prisoner's right.
India allows visitations only in open prisons. However, the Punjab government inaugurated the ‘Parivar Mulakat’ scheme in 2022, allowing prisoners private time and space with their spouses. It was suspended later due to security threats.
Conjugal visits are encouraged by criminologists as a measure to combat the practice of sodomy among prisoners. However, such visitations pose risks of the spread of sexually transmitted diseases, smuggled contraband, and other security issues.
International law
India has ratified several international treaties on human rights. It must strive to reflect those standards in its domestic law.
Article 16 of the Universal Declaration of Human Rights of 1948 (UDHR) and Article 23, paragraph 2 of the International Covenant on Civil and Political Rights of 1966 (ICCPR) recognise that all men and women of full age have the right to marry and to found a family.
In interpreting Article 23 of ICCPR, the UNHRC, in general commentary, states that the right to found family includes “the possibility to procreate and live together.”
Articles 7 and 10 of ICCPR provide, inter alia, that no one should be subject to degrading punishment and must have humane and dignified treatment.
Article 5 of the Basic Principles for the Treatment of Prisoners of 1990 categorically mentions, “Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the UDHR...'
The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 also recognises the right to have a family life and progeny in Articles 8 and 12, respectively.
In summary, a person has a natural right to have children that only a statute can constrain. The restrictions, however, must be reasonable and not derogatory of the objectives of UDHR.
Global Lens
In America, constitutional rights of prisoners are not affected inside the prison, per the U.S. Supreme Court decision in Turner v. Safley (1987) at p. 84. The inmates have a constitutionally protected right to marry, and any restriction must meet the reasonable relationship test. However, constitutional rights inconsistent with the actual imprisonment lose their exercisability in the penological interest of the State (Hudson v. Palmer, 468 U.S. at 523).
The Federal Court of Appeals, Ninth Circuit, by majority, in Gerber v. Hickman (2002), while answering procreation by prisoners using artificial insemination, held that procreation rights are fundamentally inconsistent with incarceration. A man loses a basic civil right of cohabitation, sexual intercourse, and the bearing and rearing of children by the fact of confinement.
While the American courts have persistently denied procreational rights to prisoners, the minority judgment in the Gerber case questions how procreation through artificial insemination breaches security when the prisoner is not associating physically with his spouse.
In the United Kingdom, in R (Mellor) v Secretary of State for the Home Department (2001), the Court of Appeal upheld the refusal of prison authorities to the prisoner of artificial insemination facilities. It opined that the basic tenet of incarceration is to deprive the prisoner of certain pleasures and rights that he could have enjoyed at liberty.
In his judgment, Lord Phillips argued that policy permitting prisoners of artificial insemination should follow a cautious approach as it raises difficult ethical questions and germinates legitimate public concern, impregnating the creation of a de facto issue of a single-parent family and impacting the welfare of the child.
While UK and US judges are reluctant to spell out the procreation rights of incarcerated people, the Israel Supreme Court delivered a landmark decision in Dobrin v. Israel Prison Service (2006). In this case, the petitioners, who were two members of the Knesset, mooted: In the absence of any statutory authority, how can the Israel Prison Service allow the application of a security prisoner, Yigal Amir, the assassinator of the fifth Prime Minister Late Yitzhak Rabin, to provide his wife with a sperm sample for artificial insemination to procreate?
The top Court upheld the decision of the prison facility, stating that the Israeli constitution grants the right to parenthood to prisoners. His constitutional right did not cease by imprisonment, although it was a qualified right.
The constitutional human rights of an Israeli citizen are ensconced in the Basic Law: Human Dignity and Liberty, which assumes super legislative status. However, section 8 sets certain exceptions that allow transgression of Basic Laws.
The Court affirmed that a public official does not need authority in statute to uphold any right that person is entitled to. On the contrary, an authority is required in the statute to curtail or violate that right.
India: Article 21 versus conjugal visits and progeny rights
A writ petition filed in the form of Public Interest Litigation (PIL) before the Andhra Pradesh High Court in Ms. G. Bhargava, President M/s. Gareeb Guide (Voluntary Organization) v. State of Andhra Pradesh (PIL No. 251 decided on 16th July 2012) sought immediate steps allowing conjugal visits to spouses of prisoners in jails across the state.
The High Court dismissed it, explaining that the right to personal liberty couched in Article 21 of the Constitution takes a hit as per the procedure established by law. Therefore, during incarceration, the liberty of prisoners in jail is temporarily suspended.
As a result, the right to live with his spouse or family members would suffer a blow till he completed his punishment. Nevertheless, a convict can lead a family life during furlough/leave, admittedly for a limited period. The High Court observed that if such conjugal visits were allowed, it would lead to discrimination amongst prisoners as all would not satisfy the conditions laid down in prison rules.
Further, the High Court emphasised that providing facilities for conjugal visits is a subject matter of legislature, not that of courts.
Departing from the stance in the M. G. Bhargava case, the Punjab & Haryana High Court supported the view that fundamental rights survive within the penitentiary.
The High Court, delivering a landmark judgment in Jasvir Singh v. State of Punjab (2014), dealt with a grander scheme of issues- granting permission for conjugal visits within jail premises and allowing artificial insemination in the face of the absence of any such provision under the Prisons Act of 1894, and the Punjab Jail Manual.
The High Court, through Justice Surya Kant, affirmed that the right to progeny or artificial insemination (alternatively) is part of the ‘right to life’ and ‘personal liberty’ guaranteed under Article 21. However, exercising these rights is regulated by procedure established by law and is the sole prerogative of the State.
The Bench opined that unless reasonably classified, a convict is entitled to the right to procreation while surviving jail imprisonment. Such a right, however, is to be regulated as per the policy established by the State. The State can deny the same to a class or category of convicts. The right to progeny is not absolute and is subject to the penological interests of the State.
In Kundan Singh v. State (NCT of Delhi) (2023), the Delhi High Court, while granting relief to the plea of the grant of parole for procreation through IVF, noted that
Article 21, a sentinel of the right to life and personal liberty, does not get entirely obliterated by incarceration. A prisoner's liberty is surrendered for the safety of the State and establishing the rule of law. His fundamental right to life, which is expansive and includes the right to have a child, is protected.
This procreation right is not absolute and necessitates a contextual examination, such as the parental status and age. The approach followed must be just and fair to preserve the delicate equilibrium between individual rights and broader societal considerations.
Progeny as ground for parole:
The Madras High Court in Meheraj versus State of Tamil Nadu (2022) delved into whether a convict can be allowed an emergency leave or ordinary leave for undergoing infertility treatment to beget a child, even though the Tamil Nadu Suspension of Sentence Rules, 1982, is silent on this.
The High Court answered that the prayer of the petitioner to undergo infertility treatment is an instance forming an extraordinary circumstance, falling under Rule 20(vii) of the 1982 Rules, in the light that the convict has no progeny from the wedlock.
The High Court, however, cautioned against invoking such a rule in all situations. It said every circumstance does not constitute extraordinary character. If the convict already has offspring/s from the wedlock, then such an application does not have a leg to stand on to ask for leave regarding maintaining conjugal relations. A convict cannot stand on par with a law-abiding citizen.
In Nand Lal v. State, Dept. Of Home, Rajasthan, Jaipur(2022), the Rajasthan High Court pronounced that the right or wish to have progeny is available to a prisoner but is subject to the peculiar facts and circumstances of each case.
It observed that disallowing parole would expand to coming down heavily on the progeny rights of the spouses of the prisoners. Their sexual and emotional needs emanating from marital lives need protection. For that, the prisoners ought to be awarded a cohabitation period with their spouses.
Conclusion
The primitive thinking of courts quoting conjugal visitations as a privilege has changed. It is axiomatic that a person desires parenthood in a marital relationship for the continuity of familial bonds plus the preservation of lineage. Unlike the UK and the US, Indian courts believe that prison walls do not take away fundamental rights necessitated for survival. The complete denial of rights could be counter-productive in reducing recidivism. The primary goal of imprisonment is punishment, but the net objective is rehabilitation. Permitting conjugal visitation can be a route for behavioral reformation, abating sexual violence, and addressing suicide risk in jails.
Courts are ready to recognize the right, but often they are hand-cuffed as policy issues boxed into the ambit of the legislature. The judiciary, through creative judicial interpretation, continues to be the custodian of fundamental rights, but it cannot solve these issues alone. The legislature must draft a legal framework for recognising conjugal visits. The framework indeed must categorically define the class of prisoners allowed such facility, taking issues like security, over-surveillance, and privacy infringement of the prisoner and his spouse by prison staff, inter alia, into consideration.