Explained | The debate around conjugal visits for prisoners 

Can the right of prisoners to the company of their spouses be recognised as a fundamental right? What are the various judicial interpretations of the same? How is Punjab planning to enforce these visits?

December 07, 2022 10:53 pm | Updated 10:53 pm IST

The story so far: The State of Punjab has furthered the cause of right to life and personal liberty of prisoners by allowing conjugal visits for inmates. It is expected that this initiative will lead to strengthening of matrimonial bonds and also ensure good conduct of prisoners.

What are conjugal rights?

Broadly speaking, conjugal rights are rights created by marriage, that is, the right of the husband or the wife to the company of their spouse. In the context of prisons, however, conjugal visits refer to the concept of allowing a prisoner to spend some time in privacy with his spouse within the precincts of a jail. It is often argued that conjugal visits can have positive impacts in the form of psychological health benefits for prisoners, preservation of marital ties and, reduction in the rates of homosexuality and sexual aggression within prisons. Aside from the above, it is also argued that conjugal visits are a fundamental right of the spouses of the prisoners. Prisoner rights are internationally recognised through 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. Through such instruments, prisoners are guaranteed the right to life and inherent dignity. The right to maintain family relations including conjugal visits are included in these treaties. Most prison Acts and Rules across the country accept the importance of maintenance of continuity in family and social relations.

What are the judicial views?

In the case of Sunil Batra vs Delhi Administration (1979, SC), Justice Iyer observed that “visit to prisoners by family and friends are solace in isolation: and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity.” On the specific question of conjugal rights of prisoners, however, High Courts have differed in their rulings. 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 primary question before the law was whether the right to conjugality and procreation is a part of the right to life. The High Court held that this right to conjugality is available to prisoners under Article 21, subject to restrictions. However, in the 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.’

What is going to be the Punjab model?

The State guidelines clarify that conjugal visits are a matter of privilege rather than a right. It has been notified that the average time for conjugal visits shall be two hours, allowed once every two months. The visiting spouse will have to furnish a proof of marriage and medical certificates declaring that he or she is free from HIV or any other sexually transmitted disease, COVID-19 or any other infectious disease. Moreover, such a facility will not be extended to high risk prisoners, terrorists, child abuse and sexual offenders, death row convicts, prisoners who suffer from HIV etc.

G.S. Bajpai is Vice chancellor of Rajiv Gandhi National University of Law, where Ankit and Sangeeta are Assistant Professors

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