Right to procreation survives incarceration

The Punjab and Haryana Court in Jasvir Singh Vs. State of Punjab dated 29.05.2014 held that the right to procreation survives incarceration. Such a right is traceable and squarely falls within the ambit of Article 21 of our Constitution read with the Universal Declaration of Human Rights.

Justice Surya Kant also viewed that the penological interest of the State ought to permit the creation of facilities for the exercise of right to procreation during incarceration, may be in a phased manner, as there is no inherent conflict between the right to procreate and incarceration, however, the same is subject to reasonable restrictions, social order and security concerns.

‘Right to life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate). However, the exercise of these rights are to be regulated by procedure established by law, and are the sole prerogative of the State.

Ordinarily, all convicts, unless reasonably classified, are entitled to the right to procreation while incarcerated. 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 penological interests of the State.

The petitioners are husband and wife. They were tried for an offence under Section 302/364-A/201/120-B IPC for kidnapping and brutally murdering a 16 year old minor for ransom. The trial court awarded them death sentence which was confirmed by High Court. The Supreme Court dismissed their Appeal but commuted the death sentence awarded to wife into life imprisonment.

The petitioners seek enforcement of their perceived right to have conjugal life and procreate within the jail premises. The issues raised by them are indeed of paramount public importance. Equally significant are the related issues hovering around the concept of ‘reasonable restrictions’ or ‘the extent of suspension of some of the fundamental rights during incarceration’, ‘radical jail reforms’, ‘the status of prisoners as protected citizen’ within the Constitutional framework as well as the ‘international perspective on the right to conjugal life in the precincts of jail’, which too call for discussion.