“Prisoners have the right to be treated as any other human being. That goes for medical care, welfare and not being subjected to physical attacks, so the right to have relationships with other people and within that, sexual relationships, should be respected.”
- Nigel Hampton
The above argument has been put up by Nigel Hampton QC, who has 50 years of legal experience including working for the International Criminal Court in The Hague. He believes that allowing Conjugal visits is compelling. He advocated that if you want a prisoner upon release to take up a normal life in society, you do it by trying to maintain their own private relationships as best you can, whether that’s with their partners or children. He believes the issue is one of Human Right. The critics who disagree with such arguments question the main purpose of the Criminal justice system is to punish or reform? They question, “Can punishment be converted into a comfort zone for those jailed? The international community is divided over the boons and banes of such a benefit being extended to convicts. Some construe, it as a privilege; the recent trends argue that the same is an extension of our basic human rights, constitutionally enshrined as being inherently ‘fundamental’ and hence sacrosanct. Hence, it is necessary to examine and analyze this problem, the key stakeholder being the prisoner, his/her spouse, the correctional department and the society. This article will further discuss the possible benefits and the setbacks of conjugal visitation, the varied international stance and India\s take on the issue in light of the Jasvir Singh judgment. Finally, a determination will be attempted as to whether such a correctional provision is a right arising out of a broad interpretation of Article 21 of our Constitution.
Keywords: Conjugal visits, Human Right, Rights of the prisoners, Article.21.
Meaning of Conjugal Visit:
A Conjugal visits is a scheduled period in which an inmate of a prison or jail is permitted to spend several hours or days in private with a visitor, usually their legal spouse. The generally recognized basis for permitting such visits in modern times is to preserve family bonds and increase the chances of success for a prisoner’s eventual return to life after release from prison. Additionally, they serve as an incentive to motivate inmates to comply with the various day-to-day rules and regulations of the prison, and to avoid any infringement which might disqualify them from having a conjugal visit.
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* Author is Assistant Prof. Law, G.H. Raisoni Law School Nagpur, Maharashtra.
Justice V.R. Krishna Iyer in Sunil Batra vs. Delhi Administration., 1978, held that “Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.”1
Conjugal visitation helps to improve the functioning of a marriage by maintaining an inmate’s role as husband or wife, improve the inmate’s behavior while incarcerated, counter the effects of prisonization and improve post-release success by enhancing the inmate’s ability to maintain ties with his or her family. Conjugal visits play a key role in rehabilitation and learning how to cope with prison and what prison means. All human beings have important drives and desires.
Position at International Level:
A global examination of the problem brings up certain discernible trends.
They are2
- In Belgium, inmates in open prisons are allowed a three-night home stay every three months.
- In Brazil, conjugal visits are permitted mot only for heterosexual couples but also same-sex male couples.
- In Canada, prisoners are allowed private visits by spouses or partners for up to 72 hours every two months.
- Denmark not only allows conjugal visits but even provides apartments for couples so that inmates who have been in jail for more than eight years can occasionally spend private time with their partners.
- In Germany, prisoners can apply for conjugal visits and if approved, couples are allowed private time.
- Mexico has long allowed spouses, partners and even families to visit jail inmates. Prisons in Mexico City gave gay prisoners the right to sex in 2007.
- In Saudi Arabia, both male and female prisoners are allowed one conjugal visit per month by a spouse. Further, bigamous male prisoners are allowed two separate visits a month.
- In Spain, prisoners are allowed to have conjugal visits extending up to three hours in private rooms.
- In the UK, conjugal visits are allowed for spouses if both are held in the same institution.
- In the US, six states (California, Connecticut, Mississippi, New Mexico, New York and Washington) allow conjugal visits. Washington and California even provide trailers or mobile homes on prison grounds for conjugal visits with spouses and extended family visits with other family members. California goes to the extent goes to the extent of permitting same-sex domestic partner conjugal visits.3
Position at National Level:
Currently, there are no laws in India that expressly allow conjugal visits to inmates. However, in 2015, the Punjab and Haryana High Court4 allowed conjugal visits and artificial insemination for inmates. The Court had ruled that it would be the sole prerogative of the state to regulate a legally established procedure for the same. Justice Surya Kant had held in the landmark judgment that unless reasonably classified, inmates were entitled to the right to procreate while incarcerated and that it was a fundamental right. “Such a right, 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 pen logical interests of the state,” Justice Kant had said.
The High Court directed jail officials to facilitate this. The Court said: “The right of prisoners for conjugal visits has been recognized in a few countries. If prisons are overcrowded the government should find solution for such problems. Conjugal visits help prisoners maintain relationship with families, reduce recidivism and motivate and are an incentive to good prisoners. Reforming the prisoners is part of the correctional mechanism provided in the criminal justice,” the judges observed.
- Does the right to procreation survive incarceration, and if so, is such a right traceable within our constitutional framework?
- Should penalogical interest of the State permit or ought to permit creation of facilities for the exercise of the right to procreation during incarceration?
- Does the ‘right to life’ and ‘personal liberty’ guaranteed under Article 21 include the right of convicts to have conjugal visits or artificial insemination (in alternate)?
- If the above question is answered in the affirmative, are all categories of convicts entitled to such right(s)? Jail inmates in India fall broadly in two categories: convicts and under trials.
The legislature and the judiciary have both been largely influenced by such classification while guaranteeing or curtailing fundamental, human or civil rights of jail inmates. Convicts are not entitled to each and every fundamental right guaranteed under the Constitution.5
The writ petition was disposed of with directions to the Jail Reforms Committee to consider making recommendations to facilitate the process of visitation, by considering the best practices in the area of prison reforms from across jurisdictions, with special emphasis on the goals of reformation and rehabilitation of convicts and the needs of their families. Moreover, the Committee was asked to suggest ways and means of enhancing the facilities for frequent linkage and connectivity between the convict and his family members. It was also to classify the convicts who shall not be entitled to conjugal visits and determine whether couples who are convicted should be included in such a list, keeping in view the risk and danger to law and security, adverse social impact and multiple disadvantages to their child.6
Whereas recently on 22nd November, 2019, in response to a PIL seeking to secure conjugal visits for inmates and convicts, the Director General Prisons, Delhi Government (DG Prisons) has informed the Delhi High Court that such visit inside a prison cannot be allowed.7
The DG Prisons has argued that although the maintenance of conjugal relations is a fundamental right, it is not unfettered and is regulated by the procedure established by law i.e. the Delhi Prison Rules.
“The answering respondent has no dispute with the well-established principle of law that even convicts and other prison inmates have substantial rights, albeit restricted in certain aspects, enshrined under Article 21 of the Constitution of India.” It is stated.
Certain practical concerns are also raised in the affidavit with respect to allowing conjugal visits in prisons.
“There are at present 1200 visitation undertaken on a daily basis in Tihar Jail alone. Allowing conjugal visits in prisons at this time may not be feasible in light of limited infrastructure available as well as in view of security concerns of visitors and the overarching atmosphere and circumstances prevalent in a prison.”8
It is hence an indicator to the divided stance at National Level. One of the High Courts considered it to be a Fundamental Right under Article 21 of the Constitution of India, whereas the executives considered it to be a restricted right.
Probable Benefits of Conjugal Visitation Rights:
The most pronounced reason for advocating conjugal visitation has been to mitigate homosexual tensions of the inmate population. The sad and most troubling part of prison homosexuality is when it is non-consensual. Sexual assaults in prison are literally rampant epidemics. The non-consensual nature is a valid reason to propagate conjugal visitation as a realistic concept. Supporters of conjugal visitation argue that it will not only reduce prison homosexuality and preserve family ties, but diminish the problems of prison officials as well. Some prison administrators have also suggested that conjugal visiting privileges would be an incentive factor that might improve prison discipline, while aiding the prisoner’s lives. All these factors are encouragingly rehabilitative.9
Probable Consequences of Granting the Right:
A number of obstacles hamper its effective implementation. One of these is the finances and administrative requirements to let inmates avail this facility. Innocent taxpayers would be burdened to enhance the lives of prisoners, which can be hard to explain.
Considering the overcrowded and understaffed Indian prisons, proper searches of the visitors would be tough to take care of. Single prisoners might feel discriminated against, on grant of conjugal rights to married offenders. This could invite unrest or incidences of violence.
Owing to poor infrastructure, creating space for conjugal visits within the existing prisons does not seem easy as well. Finally, it is argued by a critic that a prisoner truly repentant and unselfish would not subject his/her spouse to the conditions under which conjugal visits must be practiced. Sex is, or should be a private matter. The sexual relationship must take place in the sanctity of the house and not in a prison cubicle.10
Conclusion:
If analyzed deeply, one can come to the conclusion that slowly and gradually the balance between the rights of prisoners and victims is decreasing. This may one day lead to the collapse of the criminal justice system as the victim may end up thinking that despite getting imprisoned, the accused will lead a full family life.
This leads one to ask is the primary purpose of the criminal justice system to punish or reform the offender? Till the time an offence is an offence against the State, the primary function of the criminal justice system is to punish and then reform.
In a multidimensional society like India, there exist two different countries within one. We have our own traditions, customs, social values, apprehensions and anathemas. When we engage ourselves in academic and intellectual debates on issues such as ‘gay-rights’ and the recognition of ‘third-gender’, we can neither avoid nor can hide beneath our moral cover in the realistic aspect of conjugal visitation. It is high time that the stake holders sit together to deliberate upon the legislative or executive policy regime and recommend changes keeping in view of the futuristic priorities towards national cohesion.11 Conjugal rights should be considered as basic Human Rights in any democratic society.
End Notes
[1] See, www.legalservicesindia.com/article/2117/Conjugal-visit.html (visited on 20th November, 2019)
2 Abhishek Dixit, Commandant-TN Special Police in Tihar Jail In his article “Double Occupancy” visited on 18th November, 2019.
3 Ruth S. Cavan & Eugene S. Zemans, Marital Relationships of Prisoners in Twenty-Eight Countries, 49(2), J. CRIM. L. CRIMINOLOGY & POLICE SCI., 185 (1958)
4 Jasvir Singh and Ors v. State of Punjab & others, 2015(1) RCR (Criminal) 509.
5. See end note no.2
6. Supra 5
7. Bar & Bench, Indian Legal News, cannot allow conjugal visits inside jails, DG Prisons tells Delhi HC by Aditi Singh visited on November 22, 2019.
8 Supra 7
9. Anamica Singh and Anupal Dasgupta, Christ University Law Journal, 4, 2 (2015), 73-88 ISSN 2278-4322
10. Jospeh K. Balough, Conjugal Visitations in Prisons: A Sociological Perspective, 28 FED. PROBATION. J. 57 (1964)
11. Supra 9
