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A STUDY INTO CONJUGAL VISITS OF UNDERTRIAL PRISONERS
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A STUDY INTO CONJUGAL VISITS OF UNDERTRIAL
PRISONERS
AUTHORED BY - RAINA ANAND
INTRODUCTION
The battle between the government and human rights
organisations could be regarded as the most notable of the most recent
conflicts. All living and legal individuals must have access to human rights;
no group should be given preference over others. In a time when animal rights
are a hot topic, it's time to acknowledge that prisoners' rights cannot be
disregarded. A person's fundamental rights and needs are not violated just because
they were found guilty of a crime. In general, prisoners are housed in prisons.
A jail is simply a location where people who have
been found guilty of a crime are imprisoned and deprived of their freedom and
access to the outer world to a certain extent.
When the idea of imprisonment was first proposed,
its main goal was to put the offender under lockdown in order to protect
society from crime. The concept of imprisonment and societal perceptions of
convicts have both evolved along with society. Prisoner reform is a component
of the criminal justice system's corrective system. When talking about
reforming a prisoner, it is a very difficult task because we are talking about
changing the mindset of the criminal, which will require additional efforts from
the side of the prison authorities and the state. Correctional methods of
treatment of prisoners alone cannot achieve the goal of reformation.
We cannot completely disregard the victim or the
reason the accused was imprisoned in the first place in the name of the
prisoner's human rights. In order to protect the prisoner's human rights, it is
important to maintain the element of punishment; therefore, it is important to
ensure that punishment is both legal and actual.
The bond between a man and a woman that is the most
socially, culturally, and legally acknowledged is marriage. Marriage may also
be referred to as a covenant, relationship, or a holy union between a man and a
woman for the purpose of cohabiting.
Hence, matrimony is defined as a connection between
a man and a woman that is either based on a legally binding implied or express
contract or a spiritual belief. When we examine the origins of marriage, we
quickly come to the conclusion that the primary motivation for its introduction
must have been to legitimise the husband and wife's sexual relations in order
for them to create children who are morally and legally deserving of existence.
Legitimate offspring are granted complete rights, whereas illegitimate children
must forfeit some of their rights by virtue of specific rules that are
recognised by even modern laws as valid and giving substance to the concept of
marriage.
If permitted, conjugal visits may help to lower
recidivism and may also be used as a tool to inspire inmates to change for the
better and become better members of society. Conjugal visits can also be used
as a strategy to maintain positive relationships between the prisoner and their
family so that they do not find themselves in an unfamiliar environment where
they are unable to relate to anyone upon their release. Conjugal Visits may
also be utilised as a reward for inmates who behave well in jail and respect
the regulations of the prison throughout their time there.
This could
encourage the inmates to abide by the laws and the rules and
regulations of the prison authorities and pay attention.
It may be argued that the idea of conjugal visits
protects the human rights of those who are detained and also alleviates the
suffering of the wives of such detainees who have committed no wrongdoing
themselves. As stated in the Indian constitution, prisoners should be permitted
to have children while they are detained. Additional to India While conjugal
plays a crucial role in maintaining the family ties of the prisoners and may
also be utilised to lessen the prisoners' propensity to violate the laws and
regulations of the jail, all nations are gradually coming around to the idea
that it cannot be disregarded any longer.
The idea of conjugal visits for inmates has been
supported and agreed upon by psychologists, psychiatrists, and jail reformists
who support a correctional and rehabilitation model. This is because it can
assist them transition seamlessly into life after prison.
One may very simply and widely divide prisoners in
Indian prisons into two groups: those who have been convicted and those who are
awaiting trial. Conjugal visits should be permitted for prisoners while also
respecting their human rights. Conjugal visits should also be permitted for
those who are still awaiting trial as these are essential freedoms that cannot
be denied to the innocent.
RIGHT TO FUNDAMENTAL RIGHTS:
In India, the jurisprudence surrounding the idea of
conjugal rights is still in its infancy, and few lawyers have come up to
express their opinions. Another significant issue the Indian state faces when
addressing delicate subjects like conjugal visits and prisoner rights is the
lack of legislation. There is no legislative law that grants inmates the
ability to get married. So, the only option left for the inmates is to rely on
the legal system to uphold their human rights and interests as guaranteed by
Article 21 of the Indian Constitution.
According to Article 21 of the Indian Constitution,
nobody's right to free speech can be violated unless they follow specific legal
procedures.
The inmates are also included in its scope. The
Supreme Court denied the safeguarding of fundamental rights in the matter of D
Bhuvan Mohan Patnaik and Others v. State of Andhra (AIR 1974 SC 1992).
When someone is found guilty of a crime and given a
prison sentence, they do lose some of their rights, such as the freedom to move
around or the ability to pursue any line of work they choose, but they should
not lose any other rights, as those rights are protected by article 21 of the
constitution. The majority of fundamental rights are merely extensions of the
universally recognised, "Fundamental" human rights that are
guaranteed by the constitution.
Fundamental right to life does not get suspended
when a person the right to life includes right to create life" and
"procreate and this fundamental right does not get suspended when a person
is sentenced and awarded punishment.
As long as the first petitioner, the husband, is
alive and as long as the legal process is followed, the law under which the
petitioners are condemned and tried does not terminate their rights under
Article 21. The right of the petitioners to a decent existence under the given
conditions is not violated by any explicit or implicit provisions of any penal
legislation or the Constitution. Hence, it shouldn't be denied to the
petitioners who are trying to exercise their fundamental right to "live
and procreate."
As a sign of a developing society, rising standards
of decency must result in a broader interpretation and application of Article
21 when read in conjunction with Articles 19(1)(d) and 19. (5).
The core and essence of article 21 is fair
procedure.
The heart of article 19(5) is that the restriction
must be reasonable, and article 14 is inimical to broad discretion that
degenerates into arbitrary discrimination.
The Honorable Supreme Court ruled that the
conditions of detention cannot be expanded to include depriving of fundamental
rights, and that no rights of the prisoners will be lost that can be enjoyed by
a normal citizen of the country aside from those that will be lost inescapably
as a result of the punishment awarded to them in the form of imprisonment.
Understanding Conjugal visits
Conjugal Visits, to put it mildly, are times set
aside when an inmate in a prison or jail is allowed to spend a few hours or
days with a visitor in privacy, who is typically their spouse. Conjugal visits
are based on the fundamental principle that if one partner is incarcerated, the
family bonds shouldn't be severed as a result. The couple may also have sexual
interactions while such. Allowing the prisoners to visit their family or spouse
on occasion will aid in their moral reform and may to some extent aid in their
adjustment to society.
First, we must establish what true conjugal rights
are in order to comprehend conjugal visits.
Conjugal rights are those that a married couple has
in regard to society, such as the right to procreate, the right to build a home
together, and the right to live separately and in close proximity to one
another. Simply put, a prisoner's conjugal rights are their marital rights.
Prabhakar Pandurang Sanzgir v. State of
Maharashtra, AIR 1966 SC
Conjugal Visits, which demanded that detainees and
their married partners have the right to conjugal visits in jail. The petition
requested conjugal visitation rights for convicts, taking into account that the
majority of prisoners were older and belonged to an age group that was sexually
active.
Although it came with some restrictions, the Punjab
and Haryana High Court's approval of conjugal visits and artificial
insemination for inmates is a significant step towards recognising their
demands and human rights.
The Court determined that the right to life and
personal liberty guaranteed by Article 21 of the Constitution includes the
right of prisoners to have conjugal visits and artificial insemination. The
court stated that this right will be the sole prerogative of the state and must
be governed by a legally established procedure.
It may be claimed that the judiciary has not yet
forgotten the rights of prisoners because following the precedent-setting case
of Jasvir Singh, the judiciary gave a lengthy list of prisoners' rights that
all authorities must abide by until new law is passed for the same.
Nevertheless, in reality, these rules and rights only exist on paper and are
barely observed by the prison administration. Unless we have relevant laws, the
situation won't change. In addition, prisoners are unaware of these rights or
how to exercise them.
In Jasvir Singh & Anr v State of Punjab & Ors (2014)
The righteous statement made by Justice V.R.
Krishna Lyer was that "in our world, jails are still laboratories of
torture, warehouses in which human commodities are stored in sadistic fashion,
and whose detainees range in character from driftwood youths to courageous
dissenters."
A report from the All India Prison Reform Committee
1980–1983 details various prisoners' rights and standards for jail discipline.
This demonstrates that the purpose of imprisonment has changed from being
deterrent to being more rehabilitative and reformative.
This was the beginning of a new, gradual trend to
enforce discipline among the prisoners, and they were motivated by things like
the ability to write letters and conduct interviews with friends and family
members, as well as the remission of punishment for good behaviour and payment
of wages for labour performed.
It must be highlighted that these were once
regarded as benefits but have now been recognised by the judiciary as
fundamental components of inmates' rights. The Supreme Court of India has very
clearly stated that even while incarcerated, a person still retains their legal
or natural status; only after being found guilty of a crime that they committed
does not take their legal and natural personality.
So, it has been established in a very clear manner
that a criminal conviction alone does not deprive a person of all of their
legal rights or turn them into a non-person. However, because prisoners do not
have unrestricted rights and are subject to certain legal limits, we cannot
treat prisoners and non-prisoners equally or in a similar ways.
Conjugal visits in prisons in India
All prisoners will retain all of the human rights
and fundamental freedoms outlined in the Universal Declaration of Human Rights,
the International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and the Optional
Protocol, where the State concerned is a party, with the exception of any
limitations necessitated by the imprisonment, according to the United Nations
Basic Principle for the Treatment of Prisoners, 1990.
As a signatory to the Covenants and the Universal
Declaration of Human Rights, India has incorporated these rights into the Indian
Constitution as essential rights and guiding principles for public policy.
In the case of Jasvir Singh and Another v. State of Punjab
The petitioners in this case were a husband and
wife who had been found guilty of murdering and kidnapping a 16-year-old for
ransom. Within eight months of getting married, the husband and wife were
implicated in the criminal case. Both of them were given the death penalty by
the trial court, which the high court confirmed and sustained after hearing
their appeal. The wife's death sentence was modified to life in prison after
another appeal to the Supreme Court upheld the conviction. They were both
placed in separate cells within the same prison.
The couple in this instance sought that the jail
authorities order them to be let to be together and resume their conjugal
rights so they might conceive a child. They asserted that they were amenable to
artificial insemination because their demand was only focused on having a child
and not on satisfying their sexual desires.
The Court ruled that the right to procreate endures
impounded property. When read in conjunction with the International Declaration
of Human Rights, Article 21 of the Indian Constitution covers such a right.
The court further ordered the prison administration
to build facilities that would allow prisoners to enjoy their right to
procreation while they were incarcerated and prevent a direct contradiction
between reproduction and incarceration. All of this, meanwhile, was subject to
the court's reasonable limitations, social order, and security considerations.
"Convicts are not by mere reason of the
conviction denuded of all the fundamental rights which they otherwise
hold," Judge V.R. Krishna Lyer wrote in a landmark decision.
Many increasingly believe that criminal behaviour
is solely a result of social, economic, and environmental factors thanks to the
emerging rehabilitative and reformative ideology of punishment in modern
correctional systems around the world. According to this notion, permitting
conjugal visits would be a better method to humanise the prison environment and
aid in a convict's rehabilitation.
The Punjab and Haryana High Court made history with
its decision in Jasvir Singh and Ors v. State of Punjab and Orso. Judge
Majumdar noted that a prisoner's physical needs cannot be disregarded and urged
the government to investigate the idea of offering a separate space for a
prisoner and taking preventive steps.
Not allowing the convicts and Instead
of fully abolishing the idea of conjugal visits, one solution could be to
require that spouses only be admitted after thorough screening, with such
visits being contingent on the prisoner's character, behaviour in the jail,
attitude towards other inmates, and his punishment terms.
Only within the confines of the jail can such
unique cells or houses be established in order to further strengthen security
and certainty. The issue of "homosexuality" is one of the main issues
that prisoners deal with. The fact that prisoners engage in unprotected
intercourse inside the prison is well known, and it has frequently been
observed.
One of the most straightforward solutions to
this issue would be to give them access to a closer relationship with someone
to whom they can truly relate. The incidence of male rape, which is a serious
worry for jails across the nation, can be significantly reduced by allowing
conjugal visits. The detrimental effects of the unisex prison environment can
be lessened by letting inmates to spend a significant amount of time with their
family.
It is past time for us to acknowledge that we are a
culture that is currently debating LGBT rights or rights for non-binary people,
and it is past time that we also talk about the romantic rights of prisoners.
Right to Conjugal Visitation in Different Jurisdictions
We might as well borrow a page from other nations'
books as the Indian judiciary and society go forward and recognise the rights
of the convicts.
Every three months, Belgium's open jail convicts
are permitted a three-night house stay. Conjugal visits are legal in Brazil for
same-sex male partners as well as heterosexual couples. Every two months,
spouses or partners are permitted to see convicts in private for up to 72
hours.
In order to allow prisoners who have been
incarcerated for more than eight years to periodically spend private time with
their partners, Denmark not only permits conjugal visits but also provides
apartments for couples.
Prisoners in Germany can ask for romantic visits,
and if accepted, couples are given private time.
Families, companions, and even spouses have long
been permitted to visit prisoners in jail in Mexico.
In Saudi Arabia, a spouse is permitted to see a
prisoner once per month for a conjugal visit. Also, male bigamous inmates are
permitted two separate visits each month. Prisoners in Spain are permitted to
have intimate encounters lasting up to three hours in private rooms. Couple
visits are permitted in the UK if they take place in the same
California, Connecticut, Mississippi, New Mexico,
New York, and Washington are the six US states that permit romantic getaways.
Conclusion
Since the idea of conjugal visits is still in its
infancy and there aren't many laws or court rulings to support it, we were
unable to locate anything about it in India. For years, we have lived with the
mentality that we should do as much harm to the prisoners as we can because
they are the wrongdoers of the society, but the fundamental fact that we
overlooked was that since imprisonment was already a sentence imposed by the
court, the convict cannot receive additional punishment simply because he is at
our mercy.
Whether a person is an ordinary law-abiding citizen
or a criminal imprisoned in a jail, there are some things that cannot be taken
away from them.
According to Article 21 of the Indian Constitution,
every citizen
has the right to life and freedom. The right to survive encompasses the ability
to reproduce and the ability to live in dignity. The importance of the inmates'
marital rights makes it imperative that we acknowledge the need for legislation
or at the absolute least, discussion of the issue.
Some of the suggestions are:
Some of the recommendations include: The state
should employ parole and furlough laws liberally and without interference from
the federal government in order to ensure that prisoners build relationships
with their families.
It's important to thoroughly research the idea of
romantic visits in jails. Such a concept falls under the purview of lawmakers
or policymakers, and it is their responsibility to acknowledge this urgently
approaching requirement and create an efficient implementation method. A jail
reforms committee can be established to draught laws or a report recommending
allowing couples and family members to visit prisoners in order to make the
process clearer and less time-consuming for policymakers.
Such a committee should be formed as soon as possible so that the data collection can start right away.
The committee should decide which prisoners should
be eligible for such visits, how a prisoner should be judged, and what
resources are required to facilitate such visits and the visitation procedure.
To ensure that issues encountered in this programme
are resolved along the way, the process should be carried out in stages,
beginning with smaller jails and moving up as necessary.
Before implementing this concept fully, study
should be done in specific prisons to determine the effectiveness of conjugal
visits, their benefits and drawbacks, and whether or not this system has a
favourable impact on the convicts. Although the State must initially prioritise
conjugal visits and be mindful of its limited resources, the option to
reproduce artificially can nevertheless be maintained as a viable alternative.
Article Information
A STUDY INTO CONJUGAL VISITS OF UNDERTRIAL PRISONERS
Authors: RAINA ANAND
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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