Right to reproduction available despite imprisonment; State should permit creation of facilities for exercising right of reproduction during imprisonment, in a phased manner: Punjab and Haryana High Court

In an order deliver by Justice Surya Kant, Punjab and Haryana High Court has directed the formation of a Jail Reforms Committee, by the State Government in consultation with the High Court, in order to recommend the desired amendments in the rules/policies to ensure the grant of parole, furlough for conjugal visits and the eligibility conditions for the grant of such relief, beside other reforms.

The Committee, keeping in view the observations made in the order, would submit the report within one year of its formation, after which the State shall admit to the High Court the timeframe within which those recommendations shall be given effect. The Committee would be headed by a former Judge of the High Court. The other Members shall include a Social Scientist, an Expert in Jail Reformation and Prison Management amongst others. The tasks of the Jail Reforms Committee were also highlighted by the Court.

The Court observed, "Owing to the neglected and limited infrastructure, causing overcrowding, lack of specialized services and above all the prevailing social norms and the societal expectations, it may not be conducive to create space for conjugal visits within the existing prisons. It can nevertheless be introduced on trial basis in Model Jails or Open Air-Free Jails in such a manner that the independent family units of the 'convicts with good behavior' may live like in a small hamlet. For that purpose, as of now, a team comprising (i) District & Sessions Judge, (ii) Deputy Commissioner (iii) Superintendent of Jails can identify the places where such like practices can be introduced to begin with."

It was directed that till the State of Punjab effectively addressed the issue either by way of appropriate legislation or through policy framework, "the expression "any other sufficient cause" contained in Section 3(1) (d) of the 1962 Act shall treat the conjugal visits of a married and eligible convict as one of the valid and sufficient ground for the purpose of his/her temporary release on 'parole' or 'furlough' though subject to all those conditions as are prescribed under the Statute."

The Court however did not grant the petitioners' prayer owing to the circumstances which led to the petitioners' incarceration as the offence was grave in nature.

The Court then asserted that since multiple inputs from the social scientists, Criminologists, Jail Administration and Judiciary along with budget allocation for the requisite infrastructures, will have a direct bearing on the policy formulation, it would not expedient or desirable for the Court to direct the actual implementation of its directions or observation(s) in a time-bound manner.

The petition was filed by Mr. Jasvir Singh and his wife, Sonia, who were tried for kidnapping and brutally murdering a 16 year old minor for ransom. The Trial Court awarded them with death sentence which was confirmed by the Punjab and Haryana High Court. The Supreme Court however commuted the death sentence awarded to the wife to life imprisonment.

The petitioners were lodged in the Central Jail at Patiala, in separate cells. They now sought a command to the Jail authorities to allow them to stay together and resume their conjugal life for the sake of progeny and make all arrangements needed in this regard. They claimed that their demand was not for personal sexual gratification. In fact, they were also open to 'artificial insemination', as the husband was the only son of his parents.

The petitioner's main plank was Article 21 of the Constitution of India. They insisted that the 'right to life' has two essential ingredients, namely, (i) preservation of cell; and (ii) propagation of species of which sex life is a vital part.

They also referred to the well regulated concept of 'conjugal visitations' successfully implemented in the advanced countries like the USA, Canada, Australia, UK, Brazil, Denmark and Russia etc.

Referring to the international perspective, the Court observed, "The solitary purpose behind travelling into global case law on the point in issue is to assimilate the broad consensus that has emerged on judicial platforms. It may be seen that from U.S. to Europe, the rights to conjugal visits, procreation or even artificial insemination facilities have been recognized only partially, being integrally embedded in Articles 8 & 12 of 'European Convention on Human Rights' or as the rights that are fundamental to the liberty and human dignity emanating from the Eighth Amendment, and further subject to the justifiable and proportionate restrictions."

The State of Punjab had opposed the petitioners' prayer essentially on the plea that the Prisons Act, 1894 contains no provision to permit 'conjugal visitation'; its Section 27 rather mandates proper segregation of male and female prisoners.

The father of the minor victim (murdered for ransom by the petitioners) had also joined these proceedings to oppose the petitioners' prayer.

Owing to the ramifications, impact and implications of several vital issues of public importance, Sh. Anupam Gupta, Senior Advocate was requested to assist the Court as an amicus curiae.

It hence concluded, "The penological interest of the State ought to permit the creation of facilities for the exercise of right to procreation during incarceration, may be in a phased manner, as there is no inherent conflict between the right to procreate and incarceration, however, the same is subject to reasonable restrictions, social order and security concerns."

Read the judgment here.