In recent times, with the rising number of human rights advocates, the idea of the Reformative theory of punishment is being highlighted. What this theory states is that the ultimate objective of a penal system should be to reform the culprit, so that when he goes out into the real world he is seen as an asset to society. While the concept of the theory is laudable, its implementation is a lot more complex. However, we live in a country where the institution of family plays a very important role both in forming and reforming a person. Hence, going by that logic, allowing conjugal visitation rights to the prisoners can be seen as the solution.
While the national jurisdictions across the world have their own way of implementing these rights, India has yet to have any law or regulation concerning conjugal rights. Due to this, the advocates in favour of these rights urge the Courts to interpret it under the broad array of Article 21. This article is an attempt to analyse the problem, as well as to outline the boons and banes it possesses. Finally, with references to the recent judgement such as that of the Madras High Court, we have tried to form an analytical conclusion.
In the simplest terms, conjugal rights are rights of husband and wife arising out of marriage, which include the right to society and the right to marital intercourse. In today’s time, there is an increasing need for prisoners to also exercise these rights of conjugal visitations. Conjugal visits are judicially ordered rights for a prisoner to have a meeting with their legal spouse where they may get sexually involved. The time limit may extend to a few hours or certain days.
Conjugal Rights for Inmates: A Case Study
In the recent case of Jasvir Singh and Ors v. State of Punjab and Ors,[1] the petitioners, a couple, were previously sentenced to death by a trial court, but the wife’s sentence was reduced to life imprisonment, petitioned the court for their conjugal rights to procreate. The applicants are husband and wife.
They were charged with kidnapping and murdering a 16-year-old minor for ransom under Sections 302/364-A/201/120-B of the Indian Penal Code. The trial court sentenced them to death, which was upheld by the Court. On January 25, 2010, the Supreme Court dismissed Criminal Appeal No.1396 of 2007, but reduced petitioner No.2’s (wife) death sentence to life imprisonment. The petitioners are now seeking enforcement of their felt right to conjugal life and procreation within the confines of the penitentiary. They have raised topics that are of critical public relevance.
Equally important are the related issues that revolve around the concept of “reasonable restrictions” or “the extent of suspension of some of the fundamental rights during incarceration,” “radical jail reforms,” “the status of prisoners as protected citizens” within the Constitutional framework,” and “the international perspective on the right to conjugal life in the precincts of jail,” which all require discussion. The key question here was whether Article 21, which discusses the right to life, would also cover conjugal visitation rights and the ability to procreate.
This case served as a wake-up call for Indian legislation, emphasising the necessity for a reformative conception of punishment based on human rights. India is a multilingual, multicultural country. Most notably, it boasts a large number of faiths, sects, and branches. India has its own set of conventions, traditions, social norms, inhibitions, and taboos.
Those who are well-versed in the facts and figures on social, economic, educational, self-sufficiency, gender-free societal growth, and other related complexities are best suited to revisit the legislative or executive policy regime and recommend need-based changes while keeping future priorities for national cohesion in mind. A society that is now engaged in academic and philosophical arguments about ‘gay rights’ or the recognition of ‘third-gender’ cannot avoid or ignore the pragmatic concept of inmate conjugal visits. To put it another way, the moment has come for stakeholders to come together and discuss on this critical issue before it is too late.
Criminologists have characterised the objective of ‘punishment,’ mentioning a variety of attainable goals such as retribution, prevention, public protection, reformation, and convict rehabilitation. The current trend is towards reformation and rehabilitation in order to reduce recidivism and improve re-socialization through personal responsibility.
The sentencing time is thus divided in such a way that the emphasis in the early stages of the sentence is on punishment or retribution, but the overall purpose is re-socialization. The updated notion of punishment has been universally accepted by all civic societies that believe in the rule of law governance. The importance of provisions like “parole,” “furlough,” or “temporary release” should be mirrored as the backbone of penal jurisprudence achieved through reformative principles. If these age-old reprieving facilities are renovated with cutting-edge technology and designs, there is no reason why the authorities should be afraid of temporarily releasing criminals on ‘parole,’ ‘furlough,’ and so on for conjugal visits/procreation.
Another landmark judgement would be Maharaj v. State of Tamil Nadu,[2] where the user is the wife of an inmate who has been sentenced to life imprisonment, appealing for his leave so that he can assist her in infertility treatment. Here, the court emphasized the importance of family bonds in India stating that, “Just because a person is a prisoner he cannot be deprived of his right to dignity in a society”. Hence inclusion of Conjugal rights under the purview of Article 21 has been backed up by judicial judgements.
In “Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others”,[3] the Supreme Court ruled that “convicts are not completely stripped of their fundamental rights, even though incarceration denies certain fundamental rights, such as the right to move freely, engage in a profession of their choice,” and so on. Despite this, the convicted person retains his or her right to other fundamental protections, such as Article 21.
The prisoner’s spouse should be able to address the question of whether or not conjugal visits are desirable. Forbidding a spouse from having conjugal visits violates both their civil and human rights.
In India, jail reforms and prisoners’ rehabilitation have never been a priority. As a result of which, the convicts are clueless as to how to live a life outside prison.
Conjugal visitation would help in maintaining a heterosexual orientation for those who are concerned about homosexuality.[4] Not only will it lessen it, but it will also protect the family relationship. It will also be beneficial in problems relating to sexual assaults. Some prison guards also point out that these visits would provide for better discipline and an incentive for inmates to do better.
However, as rightly stated the sexual relationship must take place in the sanctity of the house and not in a prison cubicle[5] also stands true. Allowing these visits to take place would require financial and administrative efforts. T Indian prisons are understaffed with no proper infrastructural requirements.
Conclusion
In comparison to other countries, criminals in the US are even permitted to marry. The pair is given an apartment to live in during conjugal visits. In France, spouses can visit their convicts twice a week, although Sweden is the most liberal country, allowing spouses to visit each other on one Sunday each month and even providing home leave. The argument for allowing offenders conjugal privileges is to help with rehabilitation and stress reduction.
Not allowing the prisoners to exercise their marital rights is throwing them in the wrong direction. For the sake of humanity and for the sake of these four concrete walls of prison to be a little more rehabilitative, conjugal visiting rights should be allowed. However, there will be more investigation needed before an appropriate environment for inmate sexual expression can be made, but this is just the beginning.
While there are both pros and cons of such rights, the cons are mostly concerned with either lack of administration or moral considerations rather than facts or logic. Hence, there is a need for strategic implementation. Therefore, considering all the facts we believe that issues like conjugal rights specifically for prisoners are a need of the hour.
[1] Crl. Misc. No. M-19376 of 2020
[2] SLP (Crl.) No.2270 of 2008
[3] 1975 SCC (3) 185, 1974
[4] “Norman Eliot Kent, Legal and Sociological Dimensions of Conjugal Visitation in Prisons, 2(47) NEW ENG. J. PRISON”. L, 58 (1975).
[5] “Joseph K. Balough, Conjugal Visitations in Prisons: A Sociological Perspective”, 28 FED. PROBATION. J, 57 (1964).
Author: Aditya Juneja and Khyati Kanoje are students at NMIMS, Indore.
