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What is the status of conjugal rights for prisoners in India?

Conjugal visits is a modern-day concept adopted by countries like Canada, Germany, Russia, Spain, Belgium, Spain, Saudi Arabia, Denmark and, to some extent, the US. Brazil and Israel even allow same-sex conjugal visits.

By: Express Web Desk | New Delhi | Updated: January 25, 2018 5:00 pm
Indonesia, gay club, LGBT, gays and lesbians, homosexuality, world news Madras High Court allowed leave to an inmate who filed a plea of Habeas Corpus for allowing conjugal visit. (picture for representation)

An inmate at a central prison in Tamil Nadu’s Tirunelveli district was recently granted a two-week conjugal visit for the “purpose of procreation”. The Madras High Court granted leave to the convict who is 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 conjugal visit is a scheduled visit where an inmate is allowed to spend time with their legal spouse. The duration of the visit may stretch from several hours to several days wherein the meeting parties may engage sexually.

A division bench of the high court presided 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.

Conjugal visit is a modern-day concept adopted by countries like Canada, Germany, Russia, Spain, Belgium, Spain, Saudi Arabia, Denmark and, to some extent, the US. Brazil and Israel even allow same-sex conjugal visits.

The idea is being slowly but progressively adopted by countries worldwide on the widely agreed grounds that conjugal visits are an important factor in preserving family bonds and reducing tendencies in prisoners to commit break prison rules and regulations. Psychologists, psychiatrists, prison reforms 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.

Currently, there are no laws in India that expressly allow conjugal visits to inmates. However, in 2015, Punjab and Haryana High Court, while hearing a case, allowed conjugal visits and artificial insemination for inmates. The court had ruled that it will be the sole prerogative of the state to regulate a legally established procedure for the same. Justice Surya Kant had held in 2015 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 penological interests of the state,” Justice Surya Kant had said.

In the present case, the authorities had argued before the court that the jail manuals did not allow granting of leave for such requests. The court had, however, noted that as per Rule 20 of Tamil Nadu suspension of Sentence Rules, 1982, the seventh ground for suspension is mentioned as “any other extraordinary reason.” It held that the case fell within that scope since there was no law or regulation laid down for such cases, adding that even devoid of the provision, the court will have available Article 21 to consider the plea of the wife-petitioner. It noted that since the wife was not incarcerated and was a suffering person outside the prison, she cannot be denied her legitimate expectation to have a child.

The petition demanding leave for the detenue to assist his wife in her fertility treatment was disposed by the court which said it may also consider granting additional leave if the treatment required so.

“The right of prisoners for conjugal visits has been recognised 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 an incentive to good prisoners. Reforming the prisoners is part of the correctional mechanism provided in the criminal justice,” the judges observed.

How things stand

In the Sunil Batra judgment of 1978, Justice Krishna Iyer had held that “Imprisonment does not mean farewell to fundamental rights as laid down under Part-III of the Constitution”.

Several committees have been set up over the decades on prison reforms but any structural change has been negligible. The Justice Mulla-chaired All India Committee on Jail Reforms submitted a report with as many as 658 recommendations. The government is yet to enforce the structural and policy changes that were recommended in the report, which is considered the most comprehensive prison reforms report till date.

Indian prisons, while taking away some personal freedoms as part of the prison life, do not necessarily take away fundamental rights of inmates. However, the current framework hardly offers any prolonged contact between an inmate and families.

The present mulaqat system is the standard protocol of allowing families to visit inmates at prisons. The quick meetings, which do not stretch beyond 20 minutes, are held in noisy and crowded rooms which reduce chances of any emotional gains.

In contrast, the colonial era laws allowed kacchi mulaqat and pakki mulaqat to prisoners wherein the latter allows the convict one-on-one meetings with their spouse.

In contrast, open-air prisons or prisons without bars are a more lenient. Sanganer open camp in Rajasthan allows selected convicts to reside with their families so that it enhances integration, and instil self-discipline and family responsibility.

Health risks are also a factor that is often alluded to while conjugal rights are brought up. Depriving conjugal rights was seen by the Madras High Court as a cause for concern in the context of rising cases of HIV/AIDS in prisons.

“It is also reported that there are innumerable cases of HIV / AIDS in jails, because of sexual intercourse in between the same gender. This evil is happening because of deprivation of conjugal relationship for a prisoner,” it said.

The court suggested that a committe must be setup to address the issue of conjugal visits.

“It is a right time that the government should constitute a committee to consider the possibility of providing conjugal visit and analyze the merits and demerits of permitting conjugal visits and to provide the facility for conjugal visits to eligible prisoners subject to the precautions/safety measures to be taken,” the court said.

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