New Delhi: In 2014, the Punjab and Haryana High Court ruled in favour of a prisoner’s ‘conjugal rights’, but not much seems to have been done about it. And the matter has now come up before the high court again.
The court has been petitioned by a Gurugram resident, Neha, whose husband Gaurav has been convicted in two murder cases and has been in jail since August 2016. He has filed appeals against both these convictions.
Neha got married to Gaurav just four months before he was arrested. She applied for his parole for consummation of marriage in November 2020. However, this application was rejected by the superintendent of Gurugram district jail.
On 1 March this year, she approached the high court through Advocate Baldev Singh, “seeking enforcement of her perceived right to have conjugal life and want to procreate the child”.
“The petitioner seeks a command to the Jail authorities to allow them to stay together and resume their conjugal life for the sake of progeny,” the petition says.
Neha has relied on the high court’s 2014 verdict, in which Justice Surya Kant had held that the “right to life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate).”
She, therefore, demands that either her husband should be released on parole or the jail authorities should make necessary arrangements in or near the jail for her and her husband to maintain conjugal relations.
When Neha’s petition came up for hearing on 17 March, the court sought a response from the Haryana government, demanding to know if any policy has been framed by it in light of the 2014 verdict. The case came up again on 26 March, but was adjourned after the government sought time to file a response. The matter will next be heard on 11 May.
However, so far, a government lawyer in Haryana has claimed that the 2014 judgment — which was against the Punjab government — was never “officially communicated” to the Haryana government. The lawyer associated with the 2014 verdict says that while prisoners have since been granted parole for conjugal visits, no facilities have been made within the jails so far.
Right to procreation
In 2014, the court had ruled that the “right to procreation survives incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution”.
It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to “formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and…identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities”.
This report was to be submitted within a year. While the case concerned Punjab, the court had clarified that these directions were to be equally applicable to Haryana and the Union Territory of Chandigarh as well. The court had directed a copy of the order to be sent to the authorities in Haryana and Chandigarh.
The Madras High Court had also relied on the 2014 Punjab and Haryana High Court judgment in May 2019, to direct prison authorities to ensure that meetings between prisoners and their spouses are arranged in a “reasonably private setting”.
Relying on the celebrated right to privacy judgment as well as the Section 377 judgment to highlight recognition of dignity as a human right, Justice G.R. Swaminathan had observed, “When a prisoner meets his wife, he may like to hold her hands. His emotions are bound to be find a physical expression.”
“While private prison cottages may be a distant prospect, the privacy and dignity of the prisoners should be scrupulously protected. Conversations between prisoner and his spouse should be unmonitored,” the court added.
‘Judgment wasn’t communicated’
When asked about the steps taken, a government lawyer from Haryana claimed that the 2014 judgment was never “officially communicated” to the state.
On the condition of anonymity, the lawyer told ThePrint, “Soon after this, there were elections and the government in the state changed. So the new government was never aware of this.”
The authorities have now been informed of this judgment, as per the lawyer, and they are contemplating changes to the law to allow parole to convicts, facilitating such conjugal visits.
“It might not be feasible and possible to provide such facilities in jails. But we are planning to amend our jail rules under which the convicts can be granted parole. Currently, parole is granted only on certain grounds, but now we might do away with those grounds completely,” he said.
“If you are eligible and you maintain good conduct in jail, certainly you are eligible to apply for parole and go home,” he added.
Open air camps
Haryana also has Haryana Prisoners Open Air Camp Rules 2018, which allows for open air camps to house a limited category of prisoners above 30 years age and left to serve less than two years of their sentences.
The rules allow eligible prisoners to take employment in the open camp area and live with their families as part of the rehabilitation process under the project. It is aimed at helping prisoners to reintegrate with society after their release from the jail.
The rules say that the prisoners have to maintain their bank accounts themselves or through their family members, and shall retain the income earned by them during their stay at the open air camps. They compulsorily have to have a family member willing to reside with them, in order to shift to open jails. A family member includes their husband, wife, son, daughter, legally adopted child, father, mother, brother or sister.
The prison department had reportedly taken up Karnal and Faridabad under the pilot project.
‘Still no institutionalised mechanism’
According to advocate Arjun Sheoran, who represented the complainant in the 2014 case, several prisoners have since been granted parole for conjugal visits.
Additionally, the Punjab Good Conduct Prisoners (Temporary Release) Act 1962 has also been amended to allow temporary release of prisoners for “delivery of child by the wife of the prisoner”.
However, according to Sheoran, no such facilities have been made available within the prisons as of now.
“It is very unfortunate that despite the path-breaking judgment by Hon’ble Justice Surya Kant, the states of Punjab, Haryana and Chandigarh have failed to implement the positive directions for prison reform and for ensuring conjugal rights of prisoners. As per my knowledge no prison reforms committee under a HC judge was formed and none of the other directions were implemented,” said Sheoran.
“The prisoners have been filing petitions before the HC and some have been able to get relief but there is still no institutionalised mechanism for ensuring conjugal rights of prisoners which are necessary for dignity, privacy and is a basic human right,” he added.