Conjugal Rights of a Prisoner

On January 20^th, 2022, while hearing a petition a very pertinent question regarding the conjugal right of a prisoner was posed in front of the Madras High Court in the case of Meharaj v. The State Rep by Its Secretary & Ors. (H.C.P. (MD) No.365 of 2018). The Hon’ble High Court decided on whether the denial of conjugal rights to a convicted prisoner would be violative of Article 21. The jurisprudence on conjugal rights of prisoners in India is still in its infancy and finds its roots in various judgements by the Supreme Court and High Courts. No statute or rulebook in Indian law mentions anything about the conjugal rights of prisoners.

International Law regarding the Conjugal Rights of Prisoners and Indian Interpretation.

The Universal Declaration of Human Rights lays out the fundamental freedoms of human beings based on which the United Nations Basic Principles for the Treatment of Prisoners, 1990 states that except for the limitations necessitated by the incarceration, all the prisoners will retain the human rights expounded in the Declaration of Human Rights as well as the rights set out in other United Nations covenants. India is a signatory to the Universal Declaration of Human Rights and the Covenants of the UN. Furthermore, these rights are also enshrined in our constitution as fundamental rights and DPSPs. Article 21 while guaranteeing the right to life and personal liberty includes the prisoners within its ambit as well. Furthermore, the rights of prisoners were also consolidated by the Supreme Court in the case of Francis Coralie Mulin v. The Administrator, Union Territory of Delhi (AIR 1981 SC 746). In this case, the Court held that the detenue or the prisoner shall enjoy all the fundamental and legal rights except for the ones that are incapable of enjoyment due to the incarceration.

Clarity on the conjugal rights of prisoners was provided by Punjab & Haryana High Court in 2014 in the case of Jasvir Singh and Another v. State of Punjab (2015 Cri LJ 2282). The Court noted that rights to life and personal liberty under Article 21 include rights of convicts to have conjugal visits. The court left it up to the state to frame policy related to the conjugal rights of the convict as it is subject to the penological interest of the state.

The ratio in Meharaj v. The State Rep by Its Secretary & Ors

The three-judge bench in this case apart from the question of violation of Article 21 also faced the question of whether a specific purpose like infertility treatment would come under the conjugal rights of a prisoner. The court answered in the affirmative and held that convicts can claim such a right if it falls under the grounds of extraordinary relief and infertility treatment falls within such definition under Tamil Nadu Suspension of Sentence Rules, 1982. The court also noted that the right of a convict to have conjugal relations is not an absolute right. This view of Madras High Court was recently upheld by Punjab & Haryana High Court in Neha v. State of Haryana & Another on February 8^th, 2022 (CRWP-2526-2021).

Effects of Providing Conjugal Rights to Prisoners

Many studies have been conducted reviewing the effects conjugal visits could have on the lives of prisoners. According to a study conducted in the US, it was noted that conjugal visits can be useful in reducing prison riots as the conjugal visits would help alleviate the general tensions as sexual tensions turn into fights, to find some release. Further, in a study, it was discovered conjugal rights would also help in reducing sexual assaults in prisons. Moreover, a study also discovered that prisoners who maintain ties with law-abiding members of society while in prison have a much better chance for rehabilitation than prisoners who do not maintain such ties.