Convict Has Fundamental Right To Parenthood And Procreation, Incarceration Does Not Make Him Lesser Citizen: Delhi High Court

The Delhi High Court has ruled that a convict has the right to parenthood and procreation and such an individual does not become a lesser citizen only due to the incarceration.

“While, Judiciary in Bharat, has always stubbornly refused to hold that prisoners have no fundamental rights, this Court following the same tradition as handed over by judges of the Hon'ble Apex Court and this Court respectfully takes the intent to interpret the constitutional rights in favour of upholding and including new situations and challenges holds that right to parenthood and procreation is fundamental right of a convict in peculiar circumstances of a case,” Justice Swarana Kanta Sharma said.

The court observed that though the human right of personal liberty of a convict has to be surrendered in favour of the safety of the State and for establishing rule of law, the convict cannot be denied the protection of fundamental right to life, which will also include right to have a child, in the peculiar facts and circumstances of a case.

“…this Court holds that where the age of the convict and the biological clock of the convict and his marital partner has the potential of becoming a barrier for them to conceive and procreation of a child in future as a result of long incarceration of a convict, their prayer will need to be attended and adjudicated with empathy, though within the parameters of law,” the court said.

Justice Sharma was dealing with a plea moved by a convict Kundan Singh seeking his release on parole on the ground that he had been married for last three years and does not have a child so far. He wanted to undergo certain medical tests as he and his wife wanted to have a child through IVF procedure.

Singh, a life convict, had already undergone more than 14 years of incarceration, without remission. He was convicted in a murder case.

The court granted Singh parole for four weeks, considering that the plea to facilitate medically-assisted procreation due to his advanced age as well as his wife's, was grounded in a genuine desire to protect and preserve their lineage.

“The right to procreation is not absolute and necessitates a contextual examination. By taking into account factors such as the prisoner's parental status and age, a fair and just approach can be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations,” the court said.

Justice Sharma however clarified that the Court was not dealing with the prayer for grant of parole for maintaining conjugal relationship and conjugal rights while being imprisoned or allowing conjugal visits.

“This Court is dealing with the fundamental right of a convict, to undergo treatment required, to have a child while being granted parole on this ground itself, within the parameters of law and rules governing the grant of parole under the Delhi Prisons Rules, 2018,” the court said.

Title: KUNDAN SINGH v. THE STATE GOVT. OF NCT DELHI

Citation: 2023 LiveLaw (Del) 1335

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