Article 16 (1), The Universal Declaration of Human Rights – Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage and at its dissolution.
Rule 58 (2) , United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),2015 states that – “Where conjugal visits are allowed, this right shall be applied without discrimination, and women prisoners shall be able to exercise this right on an equal basis with men. Procedures shall be in place and premises shall be made available to ensure fair and equal access with due regard to safety and dignity.”
Whether a person sentenced to life imprisonment is also entitled to the right of procreation and form his family ? Whether such a person be given an opportunity to meet his/her spouse in private within the jail premises ? The concept of ‘conjugal visitations’ is adopted by countries. The USA, Canada, Spain, Australia, Brazil, Denmark and Saudi Arabia etc are some of the countries that permit conjugal visits. The Indian prison laws are silent as to this right.
In last few years, the High Courts have accepted the significance of conjugal visits and recognised this right of the prison inmates –
In Meharaj vs. State of Tamil Nadu (decided on 11 January,2018), Hon’ble Madras High Court observed as follows –
- While considering the merits and demerits of allowing conjugal visits or permitting leave for the purpose of artificial insemination, the advantages are more than the disadvantages. (Para 13)
- Conjugal visit leads to strong family bonds and keep the family functional. (Para 14)
- 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. (Para 15)
- Conjugal visits of the spouse of the prisoners are also the right of the prisoner. The official reason for these extended family visits is three-fold –
- to maintain the relationship between the prisoner and the members of his family,
- to reduce recidivism, and
- to motivate or to provide an incentive for the good behaviour”. (Para 16)
In Jasvir Singh & Another vs. State of Punjab & Ors. (decided on 29 May,2014) , Hon’ble Punjab High Court observed as follows –
- It may be seen from the words, expressions and phrases used by the Legislature in Section 3 of the 1962 Act that the necessity to keep a prisoner in contact with his/her family; societal expectations of his/her presence on certain occasions and the augmentation of sources of livelihood of the prisoner’s family have been manifestly acknowledged. Further, sub-clause (d) of Section 3(1) is of such a wide amplitude that it can encompass any reasonable cause as a sufficient ground for the temporary release of a prisoner. (Para 77)
- The right to conjugal visits or procreation or for that matter the right to secure artificial insemination as a supplement, are also, thus, subject to all those reasonable restrictions including public order, moral and ethical issues and budgetary constraints which ought to be read into the enjoyment of such like fundamental right within our Constitutional framework. (Para 82)
The Hon’ble High Court issued various following directions (Para 96) –
(a) State of Punjab is directed to constitute the Jail Reforms Committee to 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;
(b) The Jail Reforms Committee shall formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and shall identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities;
(c) The said Committee shall also evaluate options of expanding the scope and reach of ‘open prisons’, where certain categories of convicts and their families can stay together for long periods, and recommend necessary infrastructure for actualizing the same;
(d) The Jail Reforms Committee shall also consider making recommendations to facilitate the process of visitations, by considering best practices in the area of prison reforms from across jurisdictions, with special emphasis on the goals of reformation and rehabilitation of convicts and needs of the families of the convicts;
(e) The Jail Reforms Committee shall suggest ways and means of enhancing the facilities for frequent linkage and connectivity between the convict and his/her family members;
(f) The Jail Reforms Committee shall prepare a long-term plan for modernization of the jail infrastructure consistent with the reforms to be carried out in terms of
this order coupled with other necessary reforms;
(g) The Jail Reforms Committee shall also 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;
(h) The Jail Reforms Committee shall also classify the convicts who shall not be entitled to conjugal visits and determine whether the husband and wife who both stand convicted should, as a matter of policy be included in such a list, keeping in view the risk and danger of law
and security, adverse social impact and multiple disadvantages to their child;
(i) The Jail Reforms Committee shall make its recommendations within one year after visiting the major jail premises and it shall continue to monitor the infrastructural and other changes to be carried out in the existing jails and in the Prison Administration
System as per its recommendations.
(j) The Jail Reforms Committee shall be allowed to make use of the services of the employees and officers of the State of Punjab, who is further directed to provide the requisite funds and infrastructure including proper office facilities, secretarial services, travel allowances and all necessary amenities and facilities, as required by the Jail Reforms Committee.
It is hoped that the Parliament would bring an amendment in the existing provisions, in accordance with the above two judgments.
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