PIL in Delhi High Court calls for conjugal visits as a fundamental human right
Petitioners cite international recognition of prisoner rights and Maslow's hierarchy, which includes intimacy and sexual intercourse as a necessity
Several studies have emphasised that provision of conjugal rights to the inmates are a part of their basic needs and so rightly derives validation from Maslow's hierarchy of needs which includes reproduction/ intimacy/ sexual intercourse as one of the basic needs of an individual.
Various researches have shown conjugal visits reduce frequency of prison riots and sexual crimes while moving prisoners towards reformation and good behaviour.
A petition filed in the Delhi High Court has said that conjugal visits, away from the scrutiny of prison officials, are a "fundamental right".
Citing practices in several other countries, the Delhi government told the court that a proposal regarding prisoners' rights to seek conjugal visits has been forwarded to the state's home department.
A Division Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula was hearing a petition urging the Delhi government and DG (Prisons) to make suitable arrangements in jails for conjugal visits by prisoners' spouses.
Prisoner rights are internationally recognised by the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, etc.
This public interest litigation (PIL) was originally filed in May 2019, leading to the High Court issuing notices to relevant authorities. The above-mentioned proposal is also set to be conveyed to the Union Ministry of Home Affairs for the issuance of necessary guidelines.
"The demand for unsupervised conjugal visits is a step that should have been taken long ago. On one hand the law talks about deprivation of sexual intercourse as constituent mental cruelty to a spouse, whereas on the other when the spouses are in conformity with respect to establishing conjugal relations, the outdated rules tend to come in the way," said Advocate Vediccaa Ramdanee.
The Bench has granted the Delhi government six weeks to provide updates following its recommendation, and has posted the matter for hearing on January 15, 2024.
The PIL aims to challenge the state's prison rule, which currently requires the presence of a jail officer during prisoner-spouse meetings, and also sought to declare conjugal visits a "fundamental right" for inmates.
The petition highlights that despite most prisoners being within a sexually active age bracket, they are denied conjugal visitation.
"This deprivation can have deleterious repercussions. The age bracket that constitutes the prison population is a sexually active one. Not being able to exercise the right to be intimate with one's partner leads to piled up frustration and aggression," Ramdanee said.
"The person already a prisoner in the body is also now a prisoner of the mind which cannot be at peace owing to the very basic need that he/she is unable to fulfill," she added.
The PIL points out the progressive approach taken by courts in various countries, considering conjugal visits an important human right and their potential to reduce crimes within prisons.
It stresses that prisoners should not be denied private meetings with their spouses based on the existing provisions of parole and furlough within the Indian penal system, particularly as these options are not available to undertrial inmates.
Furthermore, it asserts that conjugal visits are not only essential for enforcing the fundamental human rights of incarcerated individuals but also vital for the well-being of their spouses who are suffering without any wrongdoing on their part.
"There must not be a distinguishing factor solely because a person is a prisoner. Even otherwise, the partner of the prisoner despite being free is deprived of the intimacy of his or her partner," Ramdanee said, adding that there is a wide distinction between what should be and what actually is the stand of the judiciary when it comes to this.
In the case of Jasvir Singh vs State of Punjab, a couple convicted of murder and on death row made a petition to the court to enforce their right to procreate. The High Court had held that this right to conjugality is available to prisoners under Article 21, subject to restrictions.
However, in the recent case of Meharaj vs State (2022), the Madras HC while considering the question of whether conjugal rights form part of the right to life and personal liberty guaranteed by Article 21, observed that there have to be differential standards in enforcement of Article 21 for law abiders and law violators.
The court observed that even though conjugal visits could not be held as a fundamental right, the prisoner would still be eligible to avail leave for conjugal visits if there are ‘extraordinary reasons’ such as ‘infertility treatments.’
Countries, such as Russia, Germany, France, Belgium, Spain, Philippines, Canada, Saudi Arabia and Denmark, and some US states allow conjugal visits. Brazil and Israel even allow same-sex partners.
Ramdanee said: "As a model, the state of Punjab has become the first state to allow for such meetings between spouses, though there are exceptions to the same such as extending this privilege to only those exhibiting good conduct and not to high risk prisoners, terrorists, gangsters, those jailed child abuse, sexual crimes, prisoners suffering from TB, HIV, etc."
Apart from states like Rajasthan, Maharashtra and Punjab, the rest of the state jails are yet to see this reform.
"The rise in these reforms will be inversely proportional to the rate of crimes within the jails which will plummet drastically. Once the sexual hunger of the body with one's spouse is satiated, the unnecessary and irrelevant aggression naturally leaves the body thereby reducing jail riots, sexual crimes, etc and thereby promoting the mental and physical well-being of the prisoners," said Ramdanee.