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Above: Prisoners of Harsul central jail at Aurangabad meeting their family members/Photo: UNI

Petitions in various courts want prisoners to be given conjugal rights. But is the main purpose of the criminal justice system to punish or reform? Can punishment be converted into a comfort zone for those jailed?

 

By Abhishek Dixit

A petition before the Delhi High Court has sought conjugal visits in jails as a fundamental right of prisoners and their spouses. Following this, the bench of Chief Justice Rajendra Menon and Justice Brijesh Sethi issued a notice to jail authorities for making necessary arrangements for providing conjugal visitation rights to prisoners.

The petition said that conjugal visitation rights were not provided in prisons in Delhi though most of the prisoners fell in the sexually active age group. “Conjugal visits are to meet the fundamental and human rights of those incarcerated and also the spouses of those behind bars who suffer without having done anything wrong,” the petitioner and social activist Amit Sahni said.

A conjugal visit is a scheduled period in which an inmate of a prison or jail is permitted to spend several hours or days in private with a visitor, usually their legal spouse. The parties may engage in sexual activity. Currently, there are no laws in India that expressly allow conjugal visits to inmates. However, in 2015, the Punjab and Haryana High Court allowed conjugal visits and artificial insemination for inmates. The Court had ruled that it would be the sole prerogative of the state to regulate a legally established procedure for the same. Justice Surya Kant had held in the landmark judgment that unless reasonably classified, inmates were entitled to the right to procreate while incarcerated and that it was a fundamental right. “Such a right, however, is to be regulated as per the policy established by the state which may deny the same to a class or category of convicts as the aforesaid right is not an absolute right and is subject to the penalogical interests of the state,” Justice Kant had said.

The High Court directed jail officials to facilitate this. The Court said: “The right of prisoners for conjugal visits has been recognized in a few countries. If prisons are overcrowded the government should find solution for such problems. Conjugal visits help prisoners maintain relationship with families, reduce recidivism and motivate and are an incentive to good prisoners. Reforming the prisoners is part of the correctional mechanism provided in the criminal justice,” the judges observed.

The following issues emerged:

  • Does the right to procreation survive incarceration, and if so, is such a right traceable within our constitutional framework?
  • Should penalogical interest of the State permit or ought to permit creation of facilities for the exercise of the right to procreation during incarceration?
  • Does the “right to life” and “personal liberty” guaranteed under Article 21 include the right of convicts to have conjugal visits or artificial insemination (in alternate)?
  • If the above question is answered in the affirmative, are all categories of convicts entitled to such right(s)? Jail inmates in India fall broadly in two categories: convicts and undertrials.

The legislature and the judiciary have both been largely influenced by such classification while guaranteeing or curtailing fundamental, human or civil rights of jail inmates. Convicts are not entitled to each and every fundamental right guaranteed under the Constitution.

The writ petition was disposed of with directions to the Jail Reforms Committee to consider making recommendations to facilitate the process of visitation, by considering the best practices in the area of prison reforms from across jurisdictions, with special emphasis on the goals of reformation and rehabilitation of convicts and the needs of their families. Moreover, the Committee was asked to suggest ways and means of enhancing the facilities for frequent linkage and connectivity between the convict and his family members. It was also to classify the convicts who shall not be entitled to conjugal visits and determine whether couples who are convicted should be included in such a list, keeping in view the risk and danger to law and security, adverse social impact and multiple disadvantages to their child.

Take a cue from them

As India prepares to give conjugal rights to its prisoners, it could take a leaf out of the book of other countries.

  • In Belgium, inmates in open prisons are allowed a three-night home stay every three months.
  • In Brazil, conjugal visits are permitted not only for heterosexual couples but also same-sex male couples.
  • In Canada, prisoners are allowed private visits by spouses or partners for up to 72 hours every two months.
  • Denmark not only allows conjugal visits but even provides apartments for couples so that inmates who have been in jail for more than eight years can occasionally spend private time with their partners.
  • In Germany, prisoners can apply for conjugal visits and if approved, couples are allowed private time.
  • Mexico has long allowed spouses, partners and even families to visit jail inmates. Prisons in Mexico City gave gay prisoners the right to sex in 2007.
  • In Saudi Arabia, both male and female prisoners are allowed one conjugal visit per month by a spouse. Further, bigamous male prisoners are allowed two separate visits a month.
  • In Spain, prisoners are allowed to have conjugal visits extending up to three hours in private rooms.
  • In the UK, conjugal visits are allowed for spouses if both are held in the same institution.
  • In the US, six states (California, Connecticut, Mississippi, New Mexico, New York and Washington) allow conjugal visits. Washington and California even provide trailers or mobile homes on prison grounds for conjugal visits with spouses and extended family visits with other family members. California goes to the extent of permitting same-sex domestic partner conjugal visits.

—Compiled by Vrinda Agarwal

The Court observed that the amicus curiae canvassed that the right to life includes right to “create life” and “procreate” and this fundamental right does not get suspended when a person is sentenced and awarded punishment. The law under which petitioners are sentenced and tried does not extinguish their rights under Article 21 till in a legal manner and as far the procedure established by law, the life of the first petitioner i.e. the husband, is extinguished. There is no provision, explicit or implied, in any penal law and/or the Constitution that takes away the petitioners’ right to a decent life under the set circumstances. The petitioners seeking to exercise their fundamental right to “life and procreate” thus ought not to be denied it.

Another example comes from the Madras High Court where an inmate in a central prison in Tamil Nadu’s Tirunelveli district was recently granted a two-week conjugal visit for the “purpose of procreation”. The Court granted leave to the convict who was serving a life term by invoking laws in several countries that allow such a visit, as well as a resolution by the centre that conjugal visits are a right and not a privilege. A division bench of the High Court presided over by Justices S Vimala Devi and T Krishna Valli awarded the temporary leave to Siddique Ali, 40, an inmate of Palayamkottai Central Jail after he had submitted a habeas corpus petition along with his wife.

Countries are slowly coming round to the view that conjugal visits are an important factor in preserving family bonds and reducing tendencies in prisoners to break prison rules and regulations. Psychologists, psychiatrists, prison reformists and academics that endorse a correctional and rehabilitation model for inmates have for years agreed that conjugal visits also help an inmate to return to normal life after being released from prison.

The judgments delivered in favour of the prisoners incorporating conjugal rights in jail premises have raised two basic questions:

  • To what extent is it viable under Article 21 to incorporate conjugal rights to prisoners in jail premises?
  • Moreover, what about the rights of the victims and to what extent can the human rights of prisoners be enhanced so as not to violate those of victims?

There is no doubt that right to life includes the right to procreate. However, when a person commits an offence, he is considered guilty only when his guilt is proved beyond reasonable doubt. Till then, he is considered innocent in the eyes of the law and that is the reason why even the Constitution recognises the rights of the accused rather than the prisoners. But being a prisoner does not take away his right as a human being. This means that the dual purpose of the criminal justice system to punish and reform the prisoner demands certain rights that need to be given to him. That is why the judiciary has been active in protecting the interests of prisoners within the jail premises. But at the same time, we cannot forget the victim.

If analysed deeply, one can come to the conclusion that slowly and gradually the balance between the rights of prisoners and victims is decreasing. This may one day lead to the collapse of the criminal justice system as the victim may end up thinking that despite getting imprisoned, the accused will lead a full family life. This could lead to non-reporting of offences, taking the law into one’s own hands, taking revenge, etc. It seems as if the judiciary has started giving preference to the human rights of prisoners and ignoring the rights of victims or their kin.

This leads one to ask: is the primary purpose of the criminal justice system to punish or reform the offender? Till the time an offence is an offence against the State, the primary function of the criminal justice system is to punish and then reform. However, in the garb of reformation, the punishment itself cannot be converted into a comfort zone for the prisoner as reformation is mainly applicable after release or completion of sentence.

Besides, during the imprisonment period, the rights of a prisoner should not be stretched to an extent where another home is provided where he comes to spend his vacations. The element of punishment must exist not merely on paper but in practice as well. Also, the rights of the victim and his pleadings cannot be ignored in the name of human rights of the prisoners. Human rights should be made available to all, not just one category.

A prison is a place where individuals are physically confined and deprived of personal freedom to a certain extent. The objective of imprisonment may vary from country to country. It may be: punitive, deterrence, reformative or rehabilitative. The primary purpose of imprisonment is to protect society against crime. Punitive methods of treatment of prisoners alone cannot achieve the goal of reformation.

Various human rights approaches, legislation and the judiciary have facilitated a change in the approaches of the criminal justice system. The UN has also provided certain guidelines for the treatment of prisoners. But these have to be balanced with the State’s obligation to protect its subjects.

Finding that balance can be tricky at times.

—The writer is posted as Commandant-TN Special Police in Tihar Jail. His views are personal and not under any official capacity

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