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Should murder convict get parole to make babies? Plea in SC puts spotlight on ‘conjugal rights’

SC to hear appeal by Rajasthan govt against state HC decision to grant parole to life convict for purpose of procreation. Various HCs have issued conflicting judgments on subject.

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New Delhi: The Supreme Court Monday agreed to examine a petition by the Rajasthan government challenging the state high court’s decision to grant 15-day parole to a life convict in order to start a family with his wife.

Rajasthan’s petition has put the spotlight on the conjugal rights of prisoners and conflicting orders delivered by various high courts. While some have held that the “right to procreation survives incarceration” and “falls within the ambit of Article 21″ of the Constitution (the right to life and liberty), a few have declared otherwise.

Mentioning the appeal before a bench led by Chief Justice of India (CJI) N. V. Ramana, the Rajasthan government counsel urged an early hearing on the ground that the 7 April order has opened a “floodgate” for litigation, with many convicts taking the same route to seek parole.

The HC order had come on a petition by the murder convict’s wife, who argued that as she was childless, her husband should be released on parole so that she could have a child. Denying the prisoner the chance to fulfil his conjugal rights, particularly for the purpose of procreation, would adversely affect the wife’s rights, the HC had observed while allowing the request.

In the apex court, the Rajasthan government said the HC order wasn’t in line with the state’s prison rules, which outline the categories of prisoners entitled to release and the grounds on which a convict can be given parole. Cohabitation for procreation is not a valid ground for parole under the jail rules, it submitted.

Parole based solely on the right of a convict’s wife to have a child, and completely ignoring the rights of the crime’s victims, is arbitrary, the Rajasthan government contended.

Taking note of the state government’s plea, the CJI bench agreed to hear the matter next week. As it is the first time that the apex court will be deliberating the issue, an authoritative pronouncement is expected to settle the jurisprudence on the subject.

Parole is the release of a prisoner — either temporarily for special purpose or completely — before the expiry of the jail term. States have their own rules that govern the procedure and reasons for parole.

Supreme Court advocate Gaurav Aggarwal told ThePrint that conjugal rights cannot be the sole ground to grant parole. “A fine balance has to be struck between the rights of a convict and of the victim, and adequate safeguards must be mentioned to ensure convicts do not misuse this right,” said Aggarwal, who has assisted the top court on prison reforms.

Also Read: No skills, no jobs, just stigma—What do Indian prisoners do after they get out?

‘Right to progeny finds mention in scriptures’

In the case mentioned above, the Rajasthan High Court had tested the wife’s petition asserting her “conjugal rights” and “right to progeny” on three aspects — religious, sociological, and legal.

On the religious aspect, the division bench of justices Sandeep Mehta and Farzand Ali quoted scriptures from Hinduism, Judaism, Christianity, and Islam to hold that the religious and cultural mandate includes the right to progeny.

Hindu philosophy talks of “attaining the wealth of the womb,” while Islamic Sharia greatly emphasises the preservation of lineages, the judgment noted.

In the sociological context, the HC said, there are four proper goals or aims of a human life according to Hindu philosophy, with procreation being one of them. While the other three — Dharma, Artha and Moksha — are pursued alone, the fourth, Kama (desire), can only be fulfilled with a spouse, it said.

Both the life convict and his spouse are deprived of Kama, it said. “In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the state is more important as for a married woman, completion of womanhood requires giving birth to a child,” the HC held.

As for the legal aspect, the judges quoted a 2014 judgement of the Punjab and Haryana HC to observe that the “right to procreation survives incarceration” and is “traceable” within Article 21.

In its appeal, the Rajasthan government argued that good behaviour cannot be the only premise for the grant of parole to a convict. Other considerations, such as the amount of time spent in jail, are equally important, it submitted.

State prison rules allow parole on emergency basis, or in the event of “serious damage to life or property from natural calamity.” But these reasons cannot be stretched so widely to include the “right to have progeny,” which, the state said, could lead to “an absurd situation”.

“Whereas the ground sought to be added in the instant case could lead to an absurd situation wherein parole could be sought multiple times and the authorities would not even be able to verify the situation or the necessity,” read the state’s petition, a copy of which is with ThePrint.

Also Read: ‘Rights are paper tigers unless given teeth by courts’: Full text of Justice Chandrachud speech

Conflicting HC verdicts

In India, the Punjab and Haryana High Court delivered the first verdict on the “conjugal rights” of a prisoner in 2014. The judgment came on a petition filed by a Punjab-based couple facing life terms in a murder case. The two wanted permission to have conjugal life and procreate within the jail premises.

Although relief was declined to the couple, the court held that parole to perform a “conjugal relationship” would be a valid and sufficient ground under Section 3(1)(d) of the Punjab Prisons Rules, 1962, which allows temporary release of a convict for “any other sufficient cause.”

Declaring “conjugal rights” a facet of Article 21, the high court directed the Punjab government to constitute a jail reforms committee 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.”

While Punjab is yet to do so, Haryana in October last year established a panel under s retired HC judge, Justice H. S. Bhalla, to look into the matter. The panel was granted a one-year term and given the mandate to suggest reforms in the prison manuals to expand the scope of open prisons.

However, various judgments from HCs show divergent judicial views on “conjugal rights”. For instance, the Punjab and Haryana HC itself has given two contrary verdicts. In 2019, it allowed a man’s plea for release on parole for a conjugal visit and procreation. But in February this year, the high court rejected a woman’s plea seeking parole for her convict husband, saying it was not an “absolute right.”

Similarly, the Madras High Court granted parole to a life convict for a conjugal visit on the request of his wife in 2018. Conjugal visits lead to stronger family bonds and keeps the family functional, it held.

But in 2019, a Madras HC division bench had urged a larger bench of three judges to decide whether the denial of conjugal rights would violate the right to life and liberty of a prisoner. In an authoritative pronouncement in January, the HC said a convict cannot be granted ordinary leave just to have a relationship with their spouse. There should be exceptional reasons, such as a need to undergo infertility treatment, it ruled.

(Edited by Tony Rai)

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