Right of convict to have conjugal relations not absolute; Subject to reasonable restrictions, social order, security concerns, good behaviour in jail: P&H HC

Read Order: Neha v. State of Haryana & Another

Monika Rahar

Chandigarh, February 7, 2022: While dealing with a petition filed by the wife of a convict, seeking release of her husband on parole for the purpose of facilitating procreation by restoring their conjugal rights, the High Court of Punjab and Haryana has observed that the right to procreation (falling within ‘right to life’ under Article 21 of the Indian Constitution) of a convict during incarceration is not an absolute right and it is subject to ‘reasonable restrictions’, ‘social order’, ‘security concerns’, ‘good behaviour’ in the jail etc. coupled with the conditions provided in Statute concerned.

The above-mentioned observations were made in light of the decision of this Court in Jasvir Singh & Anr. Vs. State of Punjab & others, 2015 (1) RCR (Criminal) 509 wherein the High Court opined that the right to procreation survives incarceration; such a right falls within Article 21 of Indian Constitution r/w the UDHR. 

It was also held that 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. 

Further, it was opined by the High Court that ‘Right to life’ and ‘personal liberty’ under Article 21 includes the right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate). However, such a right is to be regulated by procedure established by law. 

Lastly, it was enumerated that ordinarily, all convicts, unless reasonably classified, are entitled to this right while incarcerated, but such right, is to be regulated as per the policy of the State which may deny the same to a class or category of convicts as the aforesaid right is not an absolute right and is subject to the penological interests of the State.

Coming to the present case, the petitioner’s wife sought parole for her husband who was convicted in two FIRs, for facilitating procreation. 

The state counsel contended that the right to maintain conjugal relations by a convict was not an absolute right. It was his case that the petitioner’s husband being a hardcore prisoner was not entitled to the relief prayed for, and that in Jasvir Singh’s case (supra), such right was subject to Statutory conditions. Thus, he contended that the petitioner’s husband could avail parole subject to the conditions under the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 or under instructions issued by the Jail Reforms Committee (constituted after directions issued in Jasvir Singh) and he could thereafter apply, if so eligible, as per the Scheme to be formulated by the Jail Reforms Committee.  

The counsel representing the respondent referred to the judgment of the Madras High Court in Meheraj Vs. State of Tamil Nadu & others, H.C.P. (MD) No.365 of 2018 wherein it was opined that the right to have conjugal relations is not an absolute right and what is available to a convict is his right to obtain infertility treatment, and that a convicted person cannot enjoy the same rights those available to a common man because there must be a distinction drawn between a law-abiding citizen and law-violating prisoner.

In light of the above, the Division Bench of Justice Jasjit Singh Bedi & Justice Augustine George Masih adjudged that the petitioner/her husband were, at liberty to apply for parole in terms of the instructions emanated from Para 93 of Jasvir Singh’s case (supra) and if, they so apply for the same, the application was directed to be considered in accordance with the provisions contained in Section 3(1)(d) of the 1962 Act subject to those conditions as prescribed under the Statute. 

In the alternative, the Court observed that the petitioner or her convict husband could await the formulation of a Policy by the Jail Reforms Committee, in terms of the order Jail Committee and apply thereafter. 

“This we say in the light of the stand taken by the State in their reply and the fact that the prayer for parole was rejected by the authority on 09.12.2020 which was prior to issuance of instructions dated 28.09.2021”, concluded the Bench. 

The Court also added that the Jail Reforms Committee may consider the judgment in Meheraj’s case (supra) while making its recommendations.