India, like most nations, uses incarceration as a method of legal punishment for those who transgress the law. Although prisoners are alienated from society, the courts have reiterated on numerous occasions that they are still entitled to enjoy basic rights enshrined in the Constitution. One such right claimed as fundamental to a prisoner’s life and dignity is Conjugal rights. It refers to the “rights, especially to sexual relations, regarded as exercisable in law by each partner in a marriage.”
Even though this right is considered as an indispensable right in a marriage, no statute in India confers it to a prisoner. One contention for granting conjugal rights to prisoners is that it plays a significant role in reforming a prisoner as literature has evidenced. Furthermore, conjugal visits have the potential to reduce the instances of contracting HIV-AIDS in prisons, which are said to arise from the sexual frustration of criminals which leads them to engage in homosexual acts or in more insidious instances, engage in non-consensual sex with other prison inmates. More importantly, there have been contentions that conjugal rights of a prisoner fall within the ambit of Article 21 of the Constitution which guarantees the right to life and personal liberty except according to the procedure established by law. Another contention for allowing conjugal visitation is to protect the fundamental right of procreation of the spouse of the prisoner which is being arbitrarily infringed.
Judicial interpretation of Conjugal Rights in India
The Supreme Court in D. Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh has held that convicts cannot be denied any fundamental rights other than those which stand denuded due to confinement. The Court emphasised that a prisoner has the right guaranteed under Article 21 The conjugal rights of prisoners were first recognised in law in 2015 by the Punjab High Court. Justice Surya Kant, in this case, held that the right to procreation, which is a significant facet of this right, survives incarceration and declared that it falls within the ambit of Article 21 of the Constitution read with the Universal Declaration of Human Rights. There was also a direction given for the formation of a Jail Reformation Committee to recommend policy changes to make conjugal visits a feasible option for prisoners. The Madras High Court, in 2019, expanded the purview of conjugal rights. The Court read down Rule 531(2) of the Tamil Nadu Prison Rules which stated that any interview with a convicted prisoner must happen in the presence of a prison officer and stated that this rule should not be applied to meeting with a spouse. It was stressed that monitoring this interaction would infringe on the fundamental rights of the prisoner and his spouse. The Court also espoused that a prisoner should be entitled to the expansive interpretation of Article 21 and mere incarceration doesn’t render a prisoner a non-person. In furtherance of this, the Court allowed the prisoner to meet his wife in a hospital without any monitoring. In a Public Interest Litigation petition filed before the Delhi High Court, the counsel for the Petitioner averred that conjugal visitation should be allowed as it was a fundamental right. Rule 608 of the Delhi Prison Rules 2018 was asked to be read down which mandates that any interview of a prisoner with his/her spouse should be monitored. The petitioner asked the Court to allow these visits as they could aid in the reformation of criminals and reduce sex crimes in prison. Despite the courts addressing the right to conjugal rights of prisons, the law relating to it is still in an elementary form.
Conjugal Rights of Prisoners are an Extension of Right to Life
One of the basic rights that every human is entitled to is to live with dignity as provided under Article 21 of the Constitution. Additionally, several international conventions that India is a party to such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR), state that all people, including prisoners are entitled to basic human rights and fundamental freedoms. In furtherance of the same, India’s criminal system focuses on rehabilitation and reformation of its criminals. In the Sunil Batra case, the Court has stressed on the importance of re-humanization of a criminal through many activities including visits with family. In the subsequent case, the Court highlighted that prisoners should not lead a mere animal existence and placed emphasis on the importance of visits from family and friends and also said that the right of family and friends to meet the prisoner cannot be denied in the light of Article 21 of the Constitution protects the right to life and liberty of an individual subject to the procedure established by law.
Although, prisoners’ personal liberty is restricted in accordance with the procedure established by law, they still have a right to live with dignity and continue their marital existence. As family life is rooted in the culture of Indian society, continuance of a marriage can be seen as a basic right a prisoner must have. An extension of this argument states that the spouse of a prisoner cannot be arbitrarily denied conjugal rights just because her/his spouse is convicted of an offence. As conjugal rights are considered to be an intrinsic part of any marriage, denying an innocent person this right, strips them of their right to live with dignity making it a gross violation of rights.
Another argument against the bar on conjugal visits provided to prisoners is that it infringes on the right to procreate. Child-bearing is considered an integral part of a marriage if the both of the spouses consent to do so. Mere incarceration of one spouse cannot be considered as a reasonable justification for placing a bar on procreation. It must be taken into account that women have a restricted duration, in which they can bear offsprings and therefore there is a high chance that a couple may never have a child, even after one of the spouses has completed the period of incarceration in prison. In light of this, not granting conjugal rights to prisoners is an arbitrary and unreasonable restriction of the fundamental rights of a prisoner. The High Court of Punjab and Haryana recently recognised this right to procreate of prisoners and stated that conjugal visitations and an option of artificial insemination must be granted to prisoners. The Courts also stated that there must be a reasonable classification as to which inmates get this right. The Court in this case, rejected conjugal visitations to a married couple who were both convicted because the offence they committed was of a grave and heinous nature.
Way forward
Although, the Indian courts have time and again have established that no prisoner can be stripped of his basic rights, most opponents to allowing conjugal visitations to prisoners, state that it could lead to more instances of convicts escaping prison or can increase illegal activities like prostitution and drug abuse. Another contention made by opponents is that it dilutes their purpose of punishing an offender. These contentions, justifying the infringement of basic rights of a human, fall short because they can be easily remedied without placing a complete embargo on conjugal visitations.
Firstly, as the Punjab and Haryana high Courts stated, a Jail Reform Committee must make a detailed analysis and submit a draft plan as to accommodate conjugal visits. It is understood that some classes of prisoners who have been convicted of offences of a grave nature cannot be given this right, as they can pose a threat, and therefore the plan must contain classes of prisoners who can exercise this right. The government must try to allocate more funds to ensure spaces where conjugal visitations can occur, however if infrastructural inefficiencies prove to make the previous suggestion difficult, the State must consider using paroles and furloughs as alternatives so that a prisoner may continue his/her marital obligations.
Lastly, a large number of studies, undertaken in several countries which grant conjugal rights to its prisoners show that these visitations help in the reformation of the convict and reduced sex crimes in prison. As India’s criminal law system follows the reformative punishment theory, granting this right to convicts will be a big help in their rehabilitation.
This is a guest post by Sanjana D Rayapati. She is a third year law student at School of Law, Christ University, Bangalore. You may contact her here.