The term “conjugal rights” refers to a jail inmate’s marital rights. conjugal right is a legally recognized as well as an inherent right of wedded couple within the societal structure that includes the ability of interaction together, construct a house jointly, as well as reap all the benefits of an interpersonal relationship altogether, such as the right to have ‘sex’ and ‘reproduction.’ There has been a consensus as well as debate upon that worth and morality of granting inmates marital privileges. Many who support such approach claim that this will aid in the solution of the homosexuality problem as well as the shaping of the inmate’s conduct. Many who disagree argue stated variables such as guardianship and security issues, absent fathers, trafficking of illegal products from outside, and so on nullify the positives effects if any. The Contemporary law in India upon that notion of marital privileges remains continuously developing i.e. it is still in its adolescence. There seems to be no legal legislation which neither addresses nor grants these rights. Convicts are granted marital privileges. If this isn’t the case, Article 21 of the Constitution allows inmates to ring on the doors of justices. Throughout this piece, the researchers examine the choices taken. In each of these cases, the courts have made decisions based on law that is now in effect. With relation to marital privileges in other countries.
“The thing that irks me the most is this shattered prison, after all, I’m tired of being enclosed here. I’m wearying to escape into that glorious world, and to be always there: not seeing it dimly through tears, and yearning for it through the walls of an aching heart: but really with it, and in it.”- Emily Bronte, Wuthering Heights
Prisoners by virtue of being human are entitled to basic human rights and it does not mean a mere animal existence as was held in the case of Sunil Batra2 and Charles Sobhraj vs. The Superintendent, Central Jail, Tihar. A prisoner belongs to the same society as others and is henceforth entitled to enjoy the fruits of various social institutions such as marriage. As we all know, since time immemorial, prisoners are subjected to various reformation techniques so as to reintegrate them back into the mainstream society. A thought must be pondered upon that the prisoners are also entitled to enjoy their conjugal rights just like any normal couple. This paper puts forward the concept of conjugal rights of the prisoners and offers deeper analysis towards the legal dimensions of this right in India, United States of America, Canada and Europe. In the last part of this paper some suggestions are also set forth giving greater insights upon this topic.
CONJUGAL RIGHTS OF THE PRISONERS: CONCEPT
The terminology “Conjugal” means those rights which are bestowed upon the married couples in the society.4 These rights includes rights to build a house altogether. Enjoy the benefits of being a civil and mutual couple, which includes right to have sexual intercourse, reproduction and raising the off-springs and many more rights are annexed to it. When these rights are extended to the prisoners of a jail, it refers to the conjugal rights of the prisoners.
ARGUMENTS THAT FAVOURS ALLOWING CONJUGAL VISITS TO THE PRISONERS
Being a widely debated topic, it is considered to be a need of an hour to discuss that whether conjugal visitations shall be allowed to the prisoners or not. Some of the authors have widely favored it, whereas on its contrary, most of the authors have raised their voices against the same. The arguments that have been put forward during this course are as follows-
Firstly, it has been widely advocated that “homosexuality” is considered to be a greater concern as its instances have branched out manifolds. Also, there are various instances of rapes committed against men in the premises of jail itself which has been a matter of serious concern for most of the states like United States of America, Europe etc. it has been noted that allowing conjugal visitations to such prisoners would certainly help to negate such effects of the heterogeneous jail conditions as it is ensured that maximum time is spent with family. Also, it helps to suppress the urge of asserting their manhood and utilizing fellow jail inmates so as to re-enforce a robust reputation. It can be rightly debated that allowing conjugal visitations to the jail inmates would transform their behavior for good, it would certainly cast a normalizing effect come there be as this behavioral transformation would help to reduce the instances of violence casted upon other jail inmates and food also play an upper hand to integrate these Prisoners back into the mainstream society as once they are released from this bars the social stigma attached to them would never Vanquish. Also, considering the humanity related point of view and individual is entitled to enjoy the affection and privacy of their families whereas, there is no underlying point of the “Defenseless partner” pertaining to the sexual and mental anguish that comes with the dissolution of marital connections due to confinement. Furthermore, it is widely advocated that allowing of conjugal visits or associations would boost the “one-child families” which hampers the family system prevailing in our society and also it is considered that the off springs of such business are faultless and they shall not be allowed to suffer at any cost, the same was held in the case of R.P Upadhyay vs State of Andhra Pradesh and ors.
ARGUMENTS AGAINST ALLOWING CONJUGAL VISITS TO PRISONERS
Taking forward the argument set forth by advocating for the merits of allowing conjugal visits to prisoners it has already been recommended that incarceration heterosexuality is just not associated to heterosexual neglect, but instead is an affirmation of the desire for prowess by individuals who have already been placed in a situation of disempowerment, and that heterosexual activity occurs at such a low frequency that it will only have minor or inconsequential consequence.7 It is also to be noted that on account of absence of relevant literature on this subject matter, there is a need felt for careful and systematic study in this regard as we cannot ignore some of the serious concern such as there seems to be a scarcity of study to back up this claim, as well as the outcomes are only guesses. Critics remind out though that considerations such as detention as well as security concerns, trafficking of illegal items from outside, and so on cancel out any massive influence.8 Also, it has been stated by various authors that a society is not entitled to grant the jail inmates the conjugal visitations as it is an open opportunity to them to indulge into sexual intercourse, procreate children, spoil discipline as it hampers directly or indirectly the very purpose for which the jail term was granted. Henceforth, it is a much needed requirement that the society needs to be sensitive towards this issue in hand as society which is presently advocating for the rights of “gay people” or the “third gender” needs to be liberal on allowing conjugal association’s to such prisoners.
METHODS OF ALLOWING CONJUGAL VISITATIONS TO THE PRISONERS
As previously discussed , conjugal rights refers to allowing the jail inmates to spend some quality time with the family or spouse in privacy within or beyond the vicinity of jail. These rights could be enjoyed by the Prisoners only if the state legislature provide for the same. The infrastructure for the same include separate rooms so that privacy could be enjoyed with family or friends, clean laundry, hygienic washrooms for the jail inmates and their families.
Another method for allowing conjugal association to prisoners includes “furlough” and “parole” where in a Prisoner is temporarily released from incarceration to enjoy the fruits of family and marriage. The major point of difference among the two is that the former is allowed to a Prisoner without any specific reasons as the main motive is to reinstate a Prisoner back into the mainstream society once the jail term gets over. Whereas, the latter is allowed on account of specific reasons such as death, marriage, sickness in family and etc. It is widely advocated that this methods lead to greater discrimination between the married and the unmarried business as the underlying aim was to promote the Institution of marriage and keeping it intact. Otherwise, it does not provide for equitable opportunities for all advocated that this methods lead to greater discrimination between the married and the unmarried business as the underlying aim was to promote the Institution of marriage and keeping it intact. Otherwise, it does not provide for equitable opportunities for all. However, various drawbacks could be associated with “parole” and “furlough” that there is always a lack of infrastructure for the same and an underlying threat of these prisoners absconding. Furthermore, many of the Prisoners does not fulfill the essential conditions of the same such as the duration of sentence, non fulfillment of requirements of bail bond and much more making them incompetent to enjoy this facility of conjugal visits. Also, conjugal visitation would cause a major financial burden on the state as there is a major Lac in the basic infrastructure such as separate cottages Or rooms , toilet facilities and etc.
LEGISLATIVE ASPECTS OF CONJUGAL RIGHTS OF PRISONERS IN INDIA
a). THE CONSTITUTIONAL FRAMEWORK
It has been expressly set forth under article 5 of the United Nations Basic Principles for the Treatment of Prisoners, 1990 that the jail inmates are entitled to cherish the basic human rights and fundamental freedom that has been set for words by the Universal Declaration of Human Rights (UDHR), 1948 except for those restrictions casted by the imprisonment and also in case where the state concerned is a party to various agreements such as The International Covenant on the Economic, Social and Cultural Rights; The International Covenant on Civil and Political Rights and various other rights set forth in the United Nations Conventions.
The Indian constitution being the youngest constitution of the world is a ratifying member of the above stated Universal Declaration of Human Rights 1948 and other accords. Thus, these rights are extensively provided under the Indian constitution and the form of Directive Principles of State Policy and fundamental rights. Article 21 of the Indian Constitution states that no one’s life or individual freedom may be taken away from them unless they follow the legal procedure. Prisoners are also expressly covered under the scope of this article.
Although, the issues such as homosexuality of prisoners and sexual abuse of the under-age prisoners was recognized but still, the concern regarding conjugal association of prisoners wasn’t raised.
b). THE STATUTORY FRAMEWORK
Taking into consideration, the conjugal rights of the prisoners in India, it is to be noted that there are neither express nor implied provisions for the same made available in any statute or any such rulebook. When the question comes to parole and furlough, the state government is empowered to make rules and exercise action upon it. Whereas, there are no such central legislations for the same. Taking into the example of The Punjab Good Conduct Prisoners (Temporary Release) Act 1962, various rules and regulations for granting parole and furlough to the jail inmates are made by state government such as section 3(1) provides that a prisoner could be released on parole and furlough if an application is filed by an adult member of his or her family. Section 4 provides that if necessary the prisoners could be released on parole if the state legislature is convinced that any member of the prisoners family has deceased, is gravely ill, there is celebration of the jail inmates son’s or daughter’s marriage, for cultivation, harvesting or ploughing the agricultural land of prisoner wherein no other family member is available for the same or for any other cause. Section 4 provides that the state legislature can discharge the jail inmates on “furlough” for a very limited time, contingent to the prisoner’s good behavior, severity of the crime committed along with its nature. Section 6 of this beneficial piece of legislation establishes a prohibition upon the release of a jail inmate if the circumstances are such that it is likely to hamper public peace and order. Whereas, section 8 of this act imposes penalties if a convict does not report after his or her parole time expires.
It is important to note that parole and furlough shall never be considered as a means to grant conjugal visitations to prisoners as these must be used liberally as the major motive is to reinstate the prisoners back into the mainstream society as was held in Krishan Lal vs Stae of Bihar.
c). THE JUDICIAL FRAMEWORK
Throughout the decision of Francis Coralie Mulin vs. the Administrator, Delhi, the apex court has declared that the prison inmates have the similar basic rights like any other ordinary citizen, with the exception of those that have been denied due to their confinement. The Court was asked to determine whether or not convicts have conjugal rights. The appropriate response had also changed throughout the time as a consequence of several occurrences.
i. G. BHARGAVA, PRESIDENT M/S. GAREEB GUIDE (VOLUNTARY ORGANIZATION) VS. STATE OF ANDHRA PRADESH
Under this lawsuit, the petitioner filed a Public Interest Litigation (PIL) with the Andhra Pradesh High Court, requesting quick action to allow conjugal visits to the wives of prisoners in the government’s prisons. The Court, on its contrary, rejected the PIL, stating that granting those marital privileges to some convicts would indeed be detrimental towards the other inmates who have not been granted these privileges. The Supreme court observed that perhaps the subject of awarding conjugal visits is a policy choice well within domain of the State, and also that the Court does not have the authority to make such a judgment.
ii. JASVIR SINGH AND ANR VS. STATE OF PUNJAB AND ORS.
The litigants under this lawsuit were a couple who had kidnapped and murdered a sixteen-year old for payment. The Trial Court handed down a capital punishment to that same pair, while their appeal to the Supreme Court was denied. The wife’s punishment, however, was reduced to life imprisonment by the Supreme Court. Throughout their detention, the litigants prayed for the preservation of their matrimonial liberties as well as their liberty to reproduce. They also asked the court to order the prison administration to allow them to remain together for the purpose of reproduction, they desired for artificial insemination. One of the main question in this case is whether an inmate’s ‘right to life’ encompasses their ‘right to conjugal visits’ and ‘right to reproduce.’ The Punjab and Haryana High Court ruled stated that the convicts had the right to procreate too. Such entitlement may be directly traced to Article 21 of the Constitution, as well as the Universal Declaration of Human Rights. The Court ruled that only freedoms supplementary to imprisonment would be made unavailable to convicts, stating that since there is no link connecting imprisonment and marital privileges, inmates may be permitted to exercise similar entitlement, subject to appropriate constraints.
iii. MEHARAJ VS. STATE OF TAMIL NADU AND ORS.
Throughout this instance, the Petitioner (the prisoner’s wife) have petitioned In the Madras High Court requesting release for her spouse, whose been serving a life sentence. The petitioner is seeking respite to help her in undergoing infertility treatment. Throughout this judgement, the Court highlighted the importance of household links especially relationships between spouses with in reformation of a convict, stating that a person should have the right to integrity within societal structure cannot be taken away simply because he is an inmate. The Judge ruled that a person’s right to life includes marital rights, which are particularly significant. The court ruled that the right to marital visitation is protected under the law.
LAWS RELATED TO CONJUGAL ASSOCIATION IN OTHER COUNTRIES
1. UNITED STATES OF AMERICA
The federal prisons of USA doesn’t provide for conjugal Association of prisoners. However, there are various states that provide for the same but are subject to certain restrictions for the same. One such example is that of Mississippi state lock up in Parchman where the right of conjugal visitations to the inmates of Jail dates back to 1918. However, this program has been in existence since 1900’s as it was only granted to the black inmates of the jail but with evolution of time other inmates were also granted this right. The visit takes place every two weeks lasting for maximum 3 days where in separate cottages and allocated to the Prisoners and their families with proper facilities of beddings and linens. Inmates are also facilitated with home furloughs. Whereas, some other states of the USA also provides for conjugal visitation to prisoners such as the Prisoners of California jails are allowed to visit the parents, spouse, children, friends provided only in those cottages located in the vicinity of California jail. 24On the other hand, New York, Washington’s, Connecticut and Mexican jails also provide for the same but this facility has been terminated in Mississippi and New Mexico.
2. CANADA
This notion concerning marital visiting began like a trial program in 1980 and has been accepted by the government as a standard practice because it has proven to be effective at rehabilitation of convicts. Overall outcomes in giving such a privilege have indeed been beneficial, so it is critical that this procedure succeed since it is a convict’s welfare policy.
3. EUROPE
The conjugal visitations forms inseparable part of the European convention of Human Rights in Europe which provides for an inalienable right to have family, Marry, respect towards private life ,right against interference from the government authorities, right to public safety, health and morality etc. According to Article 8 of the Convention, everybody has the right to be respected for his or her private life, family life, and home, and There should be no interference by a governmental authority with the exercise of the right to bear arms. Unless it is in accordance with the law or if it is in accordance with the law or if it is in accordance with the law or required in a democracy for certain reasons (which involve issues such as public safety, health, and morals). Article 12 of the convention states that a convict of marriageable age has a right to marry under the law. According to national legislation, you have the right to marry and start a family regulating the exercise of a right.
The ratified parties are duty bound under this convention to make such provisions that abide this convention, for which various states of Europe has need certain provision for allowing conjugal visits to Prisoners. Such as the Spanish dual equality is provided that business could enjoy such rights by inviting their parents, spouse, children, family once in a month.27 The Sweden jail authorities allow conjugal visits to prisoners laughing up to 9 hours.28 The jailer qualities of France and Denmark to make such provisions.29 It is very much important to note that the rectifying state are yet to interpret this convention and does enjoy is whose margin to look into the steps which are to be taken in order to ensure compliance with this convention.
SUGGESTIONS AND CONCLUSION
Throughout India, this notion of marital privileges is still very much in development stage in terms of legality. This freedom of visitation rights including reproduction is a part of the fundamental right to live a decent life, and therefore is consequently included in Article 21 of our Constitution’s protection of life and liberties. Convicts’ matrimonial privileges remain critical, and thus the time has arrived for all parties to get down to discuss this problem. A few of the ideas include:
• Our administration must make extensive utilization of parole and furlough measures to make sure that inmates may maintain contact with their family.
• Enabling matrimonial associations in prisons demands very thorough and comprehensive investigation. The Punjab and Haryana High Court further acknowledged those matters such as permitting conjugal visits in prisons inevitably fall under the purview of legislators, and therefore it is up to them to devise an appropriate framework for putting it in place. Throughout this instance, the court ordered the state legislature to organize a Jails Reforms Commission to develop a plan for permitting marital and personal visitation to inmates. The Prison Reform proposals Committee should be formed as soon as possible.
• An Advisory board must determine whether offenders are eligible for these kind of sessions, as well as the infrastructure needed to facilitate such meetings as well as the visiting protocol. • Commencing with the Model Jails, the program should be installed gradually.
• The government must set aside funds to provide accommodations allowing marital visitation rights.
• As far as Conjugal visitations, parole and furlough are concerned there should be analyzed to investigate how beneficial they are always in changing an inmate’s behavior
• The rights to reproduce by artificial insemination must be considered. Nevertheless, given the government’s scarce funds, the administration should first focus on building infrastructure for marital visitation in prisons, and so this strategy should be included in long-term development.