Momentous judgment by court in India.
By Rajiv Theodore
NEW DELHI: Most prisoners in India would soon enjoy the right to procreate in jail. This freedom would be an extension of the Fundamental Right embedded in the country’s Constitution, and which falls within the ambit of Right to Life and Personal Liberty guaranteed under Article 21.
A momentous judgment to this effect was passed Tuesday by the Punjab and Haryana High Court which said that the ‘penological interest of the state’ should permit creation of facilities for the exercise of right to procreation during incarceration in a phased manner.
The judgment noted that there is no inherent conflict between the right to procreate and incarceration. But all this, of course, would be subject to reasonable restrictions, social order and security concerns.
It must be recalled that a similar judgment was passed in the US way back in 2001 after a California court ruled in a controversial decision that male prisoners could send their semen to women, who wanted to be impregnated.
Judge Myron H Bright had ruled that a prisoner had a “fundamental right to procreate” that “survives incarceration”. Prisoners serving life sentences in California’s jails are not allowed conjugal visits, so procreation by mail would represent a new opportunity to father children.
Unlike other countries, till now conjugal rights are not allowed for prisoners in India. In a first, Justice Surya Kant has ruled that prisoners have the right of conjugal rights and artificial insemination. However, which category of convicts to allow these rights is the prerogative of the concerned state government.
“Such a right (right to procreation while incarcerated), however, is to be regulated as per the policy established by 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,” Justice Surya Kant said.
Now the ball is in the court of a jail reforms committee that would be constituted to create an environment for conjugal and family visits for the inmates. It shall identify the categories of inmates entitled to such visits.
The court verdict would also help give a fillip to the concept of open prisons in the country which is at a nascent stage today.
At this juncture, it is pertinent to note an initiative taken by the state of Kerala involving a novel concept in dealing with criminals. In Kerala, the benefits of the open prison include periods of freedom, during which most inmates spend one month out of six with their families. There are also special five-day leave granted in the event of a family member’s death, wedding, or other important occasion. Prisoners are also permitted to have family visit them on weekends.